EX-10.1 2 unvr-ex101_6.htm EX-10.1 unvr-ex101_6.htm

Exhibit 10.1

 

Execution Version

 

AMENDMENT NO. 6, dated as of June 3, 2021 (this “Amendment”), to the Credit Agreement dated as of July 1, 2015, among UNIVAR SOLUTIONS USA INC., a Washington corporation (the “U.S. Borrower”), UNIVAR NETHERLANDS HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat (statutaire zetel) in Rotterdam, the Netherlands and its registered office at Schouwburgplein 30, 3012CL Rotterdam, the Netherlands, registered with the Chamber of Commerce (Kamer van Koophandel) under number 24128225 (the “Netherlands Borrower”), the Subsidiary Borrowers from time to time party to the Credit Agreement (the Subsidiary Borrowers, together with the U.S. Borrower and the Netherlands Borrower, the “Borrowers” and each individually, a “Borrower”; provided that, as of the Amendment No. 6 Effective Date (as defined below), the “Borrowers” are the U.S. Borrower and the Netherlands Borrower), UNIVAR SOLUTIONS INC., a Delaware corporation (“Holdings”), the several banks and other financial institutions or entities from time to time party to the Credit Agreement (the “Lenders”), BANK OF AMERICA, N.A., as Administrative Agent (the “Administrative Agent”) and Collateral Agent (the “Collateral Agent”) and the other parties from time to time party thereto (as amended, restated, modified and supplemented from time to time prior to the effectiveness of this Amendment, the “Credit Agreement”), is entered into by and among the U.S. Borrower, the Netherlands Borrower, Holdings, the other Loan Parties, the Specified Refinancing Lender (as defined below) party hereto (which, immediately after giving effect to the Specified Refinancing Transactions (as defined below), constitutes the Required Lenders) and the Administrative Agent. Each of JPMorgan Chase Bank, N.A. (“JPMorgan”), BofA Securities, Inc., Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc. and BMO Capital Markets Corp. are acting as joint lead arrangers and joint bookrunners (collectively, the “Arrangers”), and JPMorgan is acting as syndication agent, in connection with this Amendment.  Capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Amended Credit Agreement (as defined below).

WHEREAS, the Borrowers desire to amend the Credit Agreement on the terms set forth herein;

WHEREAS, the U.S. Borrower and the Netherlands Borrower have notified the Administrative Agent that they are requesting the borrowing of $1,000 million of Specified Refinancing Term Loans, which upon funding shall be in the form of a new Tranche of term loans under the Credit Agreement (such Tranche, the “Term B-6 Loans”), and the proceeds of which borrowing shall be used to refinance a portion of the Term B-3 Loans by applying such proceeds to the pro rata prepayment of the Term B-3 Loans outstanding as of the Amendment No. 6 Effective Date (immediately prior to giving effect to this Amendment) (with the remaining Term B-3 Loans not so refinanced to be repaid through other sources substantially contemporaneously therewith; the funding of the Term B-6 Loans and the refinancing in full of the Term B-3 Loans as contemplated by this Amendment are collectively referred to herein as the “Specified Refinancing Transactions”) and to pay fees and expenses in connection with the transactions contemplated by this Amendment (the entry into this Amendment, the Specified Refinancing Transactions and all other transactions relating to the foregoing (including the payment of all fees, costs and expenses incurred in connection therewith), collectively, the “Transactions”);

WHEREAS, prior to the Amendment No. 6 Effective Date, the U.S. Borrower and the Netherlands Borrower have paid in full the Term B-4 Loans;

WHEREAS, subject to the terms and conditions set forth herein, JPMorgan has agreed to make the full amount of the Term B-6 Loans to the U.S. Borrower and the Netherlands Borrower on the

 

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Amendment No. 6 Effective Date (as defined below) as a Specified Refinancing Lender (the “Specified Refinancing Lender”);

WHEREAS, Subsections 2.11(c) and 11.1(d) of the Credit Agreement provide that the Borrowers, Holdings, the Administrative Agent and the Specified Refinancing Lender may amend the Credit Agreement and the other Loan Documents (without the consent of any other Lender) to provide for the incurrence of the Term B-6 Loans and to effect such amendments as may be necessary or appropriate to effect the provisions of Section 2.11 of the Credit Agreement with respect to the Term B-6 Loans;

WHEREAS, Subsection 11.1(a) of the Credit Agreement provides that the Borrowers, Holdings, the Administrative Agent and the Required Lenders may amend the Credit Agreement and the other Loan Documents as provided therein (without the consent of any other Lender);

WHEREAS, the Administrative Agent and the Specified Refinancing Lender (which, immediately after giving effect to the Specified Refinancing Transactions, constitutes the Required Lenders) are willing to make the amendments set forth herein on the Amendment No. 6 Effective Date;

NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

Section 1.Amendments.

(a)The Credit Agreement is, effective as of the Amendment No. 6 Effective Date, hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the pages of the Credit Agreement attached as Exhibit A hereto (the “Amended Credit Agreement”); provided that any amendments that require the consent of the Required Lenders shall be deemed made immediately after giving effect to the Specified Refinancing Transactions .  

(b)Schedule A of the Credit Agreement is, effective as of the Amendment No. 6 Effective Date, hereby amended by amending and restating such Schedule to read in its entirety as Schedule A hereto.

(c)Schedule 5.8 of the Credit Agreement is, effective as of the Amendment No. 6 Effective Date, hereby amended by amending and restating such Schedule to read in its entirety as Schedule 5.8 hereto.

Section 2.Representations and Warranties, No Default.  Each Borrower hereby represents and warrants that on and as of the Amendment No. 6 Effective Date:

(a)prior to and after giving effect to the amendments set forth in this Amendment, no Event of Default exists and is continuing;

(b)after giving effect to the Transactions and the amendments set forth in this Amendment, Holdings, together with its Subsidiaries on a consolidated basis, is Solvent;

(c)each of the Loan Parties is duly organized, validly existing and (to the extent applicable in the relevant jurisdiction) in good standing under the laws of the jurisdiction of its incorporation or formation, except (other than with respect to the Borrowers), to the extent that the failure to be organized,

 

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existing and (to the extent applicable) in good standing would not reasonably be expected to have a Material Adverse Effect;

(d)each Loan Party has the corporate or other organizational power and authority, and the legal right, to make, deliver and perform this Amendment and each other Loan Document dated as of the date hereof to which such Loan Party is a party, and, in the case of the U.S. Borrower and the Netherlands Borrower, to obtain Extensions of Credit in the form of the Term B-6 Loans under the Amended Credit Agreement, and each such Loan Party has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which it is a party and, in the case of the U.S. Borrower and the Netherlands Borrower, to authorize the Extensions of Credit in the form of the Term B-6 Loans to it, if any, on the terms and conditions of this Amendment, the Amended Credit Agreement and any Notes;

(e)this Amendment has been duly executed and delivered by each Loan Party, and each other Loan Document to be entered into as of the date hereof to which any Loan Party is a party will be duly executed and delivered on behalf of such Loan Party;

(f)this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party each constitutes a legal, valid and binding obligation of the Loan Parties, enforceable against each such Loan Party in accordance with its terms, in each case except as enforceability may be limited by applicable domestic or foreign bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law);

(g)the execution, delivery and performance of this Amendment and each other Loan Document dated as of the date hereof to which any Loan Party is a party by each of the Loan Parties, the Extensions of Credit under the Amended Credit Agreement in the form of the Term B-6 Loans and the use of the proceeds from the Term B-6 Loans (x) will not violate any provision of the Organizational Documents of such Loan Party or any of the Restricted Subsidiaries, except (other than with respect to the Borrowers) as would not reasonably be expected to have a Material Adverse Effect and (y) will not violate any Requirement of Law under OFAC or the Foreign Corrupt Practices Act of 1977;

(h)no part of the proceeds of the Term B-6 Loans will be used for any purpose which violates the provisions of the Regulations of the Board, including Regulation T, Regulation U or Regulation X of the Board and, if requested by any Lender or the Administrative Agent, the Borrower Representative will furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of FR form G-3 or FR Form U-1, referred to in said Regulation U;

(i)(x) each of the Security Documents in effect on the Amendment No. 6 Effective Date are effective to create (to the extent described therein) in favor of the Collateral Agent for the benefit of the Secured Parties, a valid and enforceable security interest in or liens on the Collateral described therein, except as to enforcement, as may be limited by applicable domestic or foreign bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing and (y) when (i) all Filings (as defined in the Guarantee and Collateral Agreement) have been completed, (ii) all applicable Instruments, Chattel Paper and Documents (each as described in the Guarantee and Collateral Agreement) constituting Collateral a security interest in which is perfected by possession have been delivered to, and/or are in the continued possession of, the Collateral Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement, (iii) all Deposit Accounts and Pledged Stock (each as defined in the Guarantee and Collateral Agreement) a security interest in which is required by the Security Documents to be or is perfected by “control” (as described in the Uniform Commercial Code as in effect in each applicable jurisdiction (in the case of Deposit Accounts) and the State of New York (in the case of Pledged Stock) from time to time) are under the “control” of the Collateral Agent, the Administrative Agent, the applicable Collateral Representative or any Additional Agent, as applicable (or their respective agents appointed for purposes of perfection), in accordance with the applicable ABL Intercreditor Agreement, Intercreditor Agreement or Other Intercreditor Agreement,

 

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(iv) the Mortgages (if any) have been duly recorded in the proper recorders’ offices or appropriate public records and the mortgage recording fees and taxes in respect thereof, if any, are paid and compliance is otherwise had with the formal requirements of state or local law applicable to the recording of real property mortgages generally have been complied with and (v) all filings or recordings are made in the appropriate offices of the applicable jurisdictions as may be required under the terms of the Dutch Security Documents, the security interests and liens granted pursuant to the Security Documents in effect on the Amendment No. 6 Effective Date shall constitute (to the extent described therein and with respect to the Mortgages (if any) only as relates to the real property security interests and liens granted pursuant thereto) a perfected security interest in (to the extent intended to be created thereby and required to be perfected under the Loan Documents), all right, title and interest of each pledgor or mortgagor (as applicable) party thereto in the Collateral described therein (capitalized terms that are used in this clause (i) and not defined in the Amended Credit Agreement are so used as defined in the applicable Security Document);

(j)(x) no Borrower is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act, and (y) no Borrower is subject to regulation under any federal or state statute or regulation (other than Regulation X of the Board) which limits its ability to incur Indebtedness as contemplated hereby and by the Amended Credit Agreement;

(k)Holdings and its Restricted Subsidiaries are in compliance with the Patriot Act; and

(l)all representations and warranties contained in the Amended Credit Agreement are true and correct in all material respects on and as of the date hereof, as though made on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they were true and correct in all material respects as of such earlier date.

Section 3.Effectiveness.  Section 1 of this Amendment shall become effective on the date (such date, if any, the “Amendment No. 6 Effective Date”) that the following conditions have been satisfied or waived:

(a)Loan Documents.  The Administrative Agent shall have received this Amendment, executed and delivered by the Specified Refinancing Lender, the Administrative Agent and each Loan Party.

(b)Fees.  The U.S. Borrower shall have paid, on or before the Amendment No. 6 Effective Date, (a) to the Arrangers all fees owing to the Arrangers to the extent due and payable on the Amendment No. 6 Effective Date as separately agreed to in writing by Holdings, the U.S. Borrower and any Arranger under the Engagement Letter dated as of May 19, 2021, among Holdings, the U.S. Borrower and the Arrangers, and (b) to the Administrative Agent and the Arrangers, all costs, fees and expenses required to be paid or reimbursed for which invoices have been presented at least three (3) Business Days prior to the Amendment No. 6 Effective Date.  

 

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(c)Legal Opinions.  The Administrative Agent, the Arrangers and the Specified Refinancing Lender shall have received customary written opinions of (w) Kirkland & Ellis LLP special counsel to the Loan Parties, (x) Perkins Coie LLP, special Washington counsel to the Loan Parties, (y) Brownstein Hyatt Farber Schreck, LLP, special Nevada counsel to the Loan Parties and (z) Eversheds Sutherland (Netherlands) B.V., special Netherlands counsel to the Loan Parties.  The Loan Parties hereby request such counsel to deliver such opinions.

(d)Closing Certificate. The Administrative Agent shall have received a certificate of a Responsible Officer of the U.S. Borrower dated the Amendment No. 6 Effective Date certifying as to the satisfaction (or waiver) of the conditions set forth in Sections 2, 3(e) and 3(f) hereof.

(e)Representations.  Each of the representations and warranties made by any Loan Party pursuant to the Amended Credit Agreement, and in any other Loan Document to which it is a party, shall be true and correct in all material respects on and as of the Amendment No. 6 Effective Date as if made on and as of such date, except to the extent that they relate to a particular date (in which case, they shall be true and correct in all material respects as of such specified date).

(f)No Default.  No Default or Event of Default shall exist, or would result immediately, from the transactions contemplated hereby on the Amendment No. 6 Effective Date.

(g)Flood Determinations. The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Fee Property, and to the extent any Mortgaged Fee Property is located in a special flood hazard area, (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the U.S. Borrower and (ii) evidence of flood insurance as required by Section 7.5 of the Credit Agreement and otherwise in form and substance reasonably satisfactory to the Administrative Agent.

(h)Know Your Customer and Other Required Information; Beneficial Ownership Certification.

(1)The Administrative Agent shall have received at least three (3) Business Days prior to the Amendment No. 6 Effective Date all documentation and other information about the Loan Parties as has been reasonably requested by the Arrangers in writing at least ten (10) Business Days prior to the Amendment No. 6 Effective Date by the Arrangers that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act; and

(2)To the extent any Borrower qualifies as a “legal entity customer” under 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”) and the Administrative Agent or the Specified Refinancing Lender has requested a Beneficial Ownership Certification (as defined below) in writing at least ten (10) Business Days prior to the Amendment No. 6 Effective Date, at least three (3) Business Days prior to the Amendment No. 6 Effective Date, the Administrative Agent or the Specified Refinancing Lender, as applicable, shall have received a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of the Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by The Loan Syndications and Trading Association and the Securities Industry and Financial Markets Association (such certification, a “Beneficial Ownership Certification”), in relation to such Borrower.

 

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(i)Borrowing Request.  The Administrative Agent shall have received a borrowing notice in respect of the Term B-6 Loans in accordance with the requirements of the Amended Credit Agreement.

(j)Solvency Certificate.  The Administrative Agent shall have received a certification as to the solvency of Holdings and its Subsidiaries on a consolidated basis after giving effect to this Amendment and the borrowing of the Term B-6 Loans in form and substance reasonably satisfactory to the Administrative Agent.

(k)Secretary’s Certificate.  The Administrative Agent shall have received a certificate from Holdings and each other Loan Party, dated the Amendment No. 6 Effective Date, in substance reasonably satisfactory to the Administrative Agent, with appropriate insertions and attachments of resolutions or other actions, evidence or incumbency and the signature of authorized signatories and Organizational Documents, executed by a Responsible Officer and the Secretary or any Assistant Secretary or other authorized representative of such Loan Party.

(l)Term B-3 Refinancing.  Substantially simultaneously with the borrowing of the Term B-6 Loans, the entire principal amount of the Term B-3 Loans, and accrued interest thereon through the Amendment No. 6 Effective Date, will be paid in full in cash with this Amendment serving as written notice of the prepayment pursuant to Section 4.4(a) of the Credit Agreement.  The Administrative Agent hereby agrees this notice is sufficient and waives any requirement to receive said executed notice at least three business days prior to the Specified Refinancing Transactions.

Section 4.Post-Closing Agreements.  The Borrowers shall comply with the post-closing covenants set forth on Schedule I.

Section 5.Counterparts.  This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument.  Delivery of an executed counterpart of a signature page of this Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.

Section 6.Applicable Law.  THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

Section 7.Headings.  The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.

Section 8.Effect of Amendment.  Except as expressly set forth herein, (i) this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or any other Agent, in each case under the Credit Agreement or any other Loan Document, and (ii) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of either such agreement or any other Loan Document.  Each and every term, condition, obligation, covenant and agreement contained in the Credit Agreement as amended hereby, or any other Loan Document as amended hereby, is hereby ratified and re-affirmed in all respects and shall

 

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continue in full force and effect.  This Amendment shall constitute a Loan Document for purposes of the Credit Agreement and the other Loan Documents and from and after the Amendment No. 6 Effective Date, all references to the Credit Agreement in any Loan Document and all references in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, shall, unless expressly provided otherwise, refer to the Credit Agreement as amended by this Amendment.  Each of the Loan Parties hereby consents to this Amendment and confirms that all obligations of such Loan Party under the Loan Documents to which such Loan Party is a party shall continue to apply to the Credit Agreement as amended hereby.

Section 9.Reaffirmation. Each of the Loan Parties hereby consents to the amendment of the Credit Agreement described in Section 1 of this Amendment and hereby confirms its prior respective guarantees, pledges, grants of security interests, subordinations and other obligations, as applicable, under and subject to the terms of each of the Loan Documents to which it is party, and confirms, agrees and acknowledges that this Amendment shall not constitute a novation of the Credit Agreement or any of the other Loan Document and, notwithstanding the consummation of this Amendment, such guarantees, pledges, grants of security interests, subordinations and other obligations, and the terms of each of the Loan Documents to which it is a party, except as expressly modified by this Amendment, are not affected or impaired in any manner whatsoever and shall continue to be in full force and effect and shall also guarantee and secure all obligations as amended and reaffirmed pursuant to the Credit Agreement and this Amendment (including, for the avoidance of doubt, the Term B-6 Loans and all other “Secured Obligations” under and as defined in the Amended Credit Agreement).  Each of the Loan Parties hereby confirms in respect of the Loan Documents governed by Dutch law at the time of the entering into such Loan Documents, it was their intention (and it is still their intention and agreement) that (i) any security right created under such Loan Document  was intended to extend to the amount of the Secured Obligations (as defined in such Loan Document) from time to time notwithstanding any amendment, variation, increase, extension, addition of other event, including the amendments referred to in this Amendment, and (ii) any amount owed by the Loan Parties under the Credit Agreement as amended by and in accordance with the terms of this Amendment (including, for the avoidance of doubt, the Term B-6 Loans and all other “Secured Obligations” under and as defined in the Amended Credit Agreement) are part of the definition of the "Secured Obligations" (as defined in the Loan Documents governed by Dutch law), a "Parallel Debt" as defined in Section 10.10 of the Credit Agreement and the "Corresponding Obligations" (as defined in the Credit Agreement). Each of the Loan Parties confirms, acknowledges and agrees that the Specified Refinancing Lender providing the Term B-6 Loans is a “Lender” and “Secured Party” for all purposes under the Loan Documents.

Section 10.WAIVER OF RIGHT TO TRIAL BY JURY.

EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.

[Remainder of page left intentionally blank]

 

 

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

 

UNIVAR SOLUTIONS USA INC.,

as U.S. Borrower

 

 

 

 

 

 

By:

/s/ Joseph Rodemeyer

 

Name:

Joseph Rodemeyer

 

Title:

Treasurer

 

 

 

 

 

 

UNIVAR SOLUTIONS INC.,

as Holdings

 

 

 

 

 

 

By:

/s/ Noelle Perkins

 

Name:

Noelle Perkins

 

Title:

Senior Vice President, General Counsel and Secretary

 

 

 

 

 

 

UNIVAR NETHERLANDS HOLDING B.V.,

as Netherlands Borrower

 

 

 

 

 

 

By:

/s/ Noelle Perkins

 

Name:

Noelle Perkins

 

Title:

Director

 

 

 

 

 

 

UNIVAR HOLDCO LLC

UNIVAR HOLDCO III LLC

CHEMPOINT.COM INC.

UNIVAR USA DELAWARE INC.

UNIVAR DELAWARE, INC.

PILATES MERGER SUB II, LLC

 

 

 

 

 

 

By:

/s/ Joseph Rodemeyer

 

Name:

Joseph Rodemeyer

 

Title:

Treasurer

 

 

 

 

 

[Signature Page to Univar Amendment No. 6]


 

 

 

TPG ACCOLADE DELAWARE, LLC

NEXEO SOLUTIONS HOLDINGS, LLC

NEXEO SOLUTIONS SUB HOLDING LLC

NEXEO SOLUTIONS, LLC

ARCHWAY SALES, LLC

CHEMICAL SPECIALISTS AND DEVELOPMENT, LLC

NEXEO SOLUTIONS FINANCE CORPORATION

STARTEX DISTRIBUTION WEST, LLC

STARTEX CHEMICAL, LLC

 

 

 

 

 

 

By:

/s/ Joseph Rodemeyer

 

Name:

Joseph Rodemeyer

 

Title:

Treasurer

 

 

 

 

 

 

 

[Signature Page to Univar Amendment No. 6]


 

 

 

BANK OF AMERICA, N.A.,

as Administrative Agent and Collateral Agent

 

 

By:

/s/ Anthony W. Kell

 

Name:

Anthony W. Kell

 

Title:

Vice President

 

 

[Signature Page to Univar Amendment No. 6]


 

 

 

JPMorgan Chase Bank, N.A

as Specified Refinancing Lender

 

 

By:

/s/ Suzanne Ergastolo

 

Name:

Suzanne Ergastolo

 

Title:

Executive Director

 

 

 

 

 

 

[Signature Page to Univar Amendment No. 6]


 

 

Schedule I

to Amendment No. 6

 

[Redacted]

 

 

 


 

 

Schedule A

to Amendment No. 6

 

 

[Redacted]

 

 


 

Schedule 5.8

to Amendment No. 6

 

[Redacted]

 

 


 

Exhibit A

to Amendment No. 6

 

 

Amended Credit Agreement

 

[Attached]

 

 

 

 


EXHIBIT A

 

CREDIT AGREEMENT

among

UNIVAR SOLUTIONS USA INC.
as U.S. Borrower,

UNIVAR NETHERLANDS HOLDING B.V.,
as the Netherlands Borrower,

THE LENDERS
FROM TIME TO TIME PARTIES HERETO,

BANK OF AMERICA, N.A.
as Administrative Agent and Collateral Agent,

 

 

BARCLAYS BANK PLC,

CITIGROUP GLOBAL MARKETS INC.,

CREDIT SUISSE SECURITIES (USA) LLC,

DEUTSCHE BANK SECURITIES INC.

and

GOLDMAN SACHS LENDING PARTNERS LLC,
as Co-Syndication Agents,

HSBC SECURITIES (USA) INC.,

J.P. MORGAN SECURITIES LLC,

MORGAN STANLEY SENIOR FUNDING, INC.,

SUNTRUST ROBINSON HUMPHREY, INC.

and

WELLS FARGO SECURITIES, LLC,

as Co-Documentation Agents

 

and

BANK OF AMERICA, N.A.,
GOLDMAN SACHS LENDING PARTNERS LLC,
DEUTSCHE BANK SECURITIES INC.,
JPMORGAN CHASE BANK, N.A.,

WELLS FARGO SECURITIES, LLC,

HSBC SECURITIES (USA) INC.,

SUNTRUST ROBINSON HUMPHREY, INC.,

MORGAN STANLEY SENIOR FUNDING, INC.,

BARCLAYS BANK PLC,

CITIGROUP GLOBAL MARKETS INC.,

BMO CAPITAL MARKETS CORP.,

U.S. BANK NATIONAL ASSOCIATION

and

CREDIT SUISSE SECURITIES (USA) LLC,

as Amendment No. 2 Joint Lead Arrangers and Joint Bookrunners

 

and

GOLDMAN SACHS BANK USA,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
DEUTSCHE BANK SECURITIES INC.,
JPMORGAN CHASE BANK, N.A.

and

WELLS FARGO SECURITIES, LLC,

as Amendment No. 4 Joint Lead Arrangers and Joint Bookrunners

 

 


 

 

and

 

GOLDMAN SACHS BANK USA,

BOFA SECURITIES, INC.,

BMO CAPITAL MARKETS CORP.,

CITIGROUP GLOBAL MARKETS INC.,

DEUTSCHE BANK SECURITIES INC.,

HSBC SECURITIES (USA) INC.,

JPMORGAN CHASE BANK, N.A.,

MORGAN STANLEY SENIOR FUNDING, INC.,

U.S. BANK NATIONAL ASSOCIATION

and

WELLS FARGO SECURITIES, LLC

as Amendment No. 5 Joint Lead Arrangers and Joint Bookrunners

 

and

JPMORGAN CHASE BANK, N.A.,

BOFA SECURITIES, INC.,

DEUTSCHE BANK SECURITIES INC.,

GOLDMAN SACHS BANK USA,

WELLS FARGO SECURITIES, LLC

CITIGROUP GLOBAL MARKETS INC.,

MORGAN STANLEY SENIOR FUNDING, INC.,

and

BMO CAPITAL MARKETS CORP.,

as Amendment No. 6 Joint Lead Arrangers and Joint Bookrunners,

dated as of July 1, 2015

 

and as Amended by Amendment No. 1 on January 19, 2017, Amendment No. 2 on November 28 2017, Amendment No. 3 on February 23, 2019, Amendment No. 4 on February 28, 2019 and, Amendment No. 5 on November 22, 2019 and Amendment No. 6 on June 3, 2021

 

 

 

 


 

 

Table of Contents

 

 

Page

 

 

Section 1 Definitions

1

 

 

1.1

Defined Terms

1

1.2

Other Definitional and Interpretive Provisions

5763

1.3

Borrower Representative

5865

1.4

Foreign Subsidiary Documentation

5966

1.5

Dutch Terms

5966

Section 2 Amount and Terms of Commitments

6067

 

 

2.1

Term B-56 Loans

6067

2.2

Notes

6067

2.3

Procedure for Term B-56 Loan Borrowing

6168

2.4

[Reserved]

6269

2.5

Repayment of Loans

6269

2.6

[Reserved]

6269

2.7

[Reserved]

6269

2.8

Incremental Facilities

6269

2.9

Permitted Debt Exchanges

6572

2.10

Extension of Term Loans

6673

2.11

Specified Refinancing Term Loan Facilities

6976

Section 3 [Reserved]

7077

 

 

Section 4 General Provisions Applicable to Loans

7077

 

 

4.1

Interest Rates and Payment Dates

7077

4.2

Conversion and Continuation Options

7178

4.3

Minimum Amounts; Maximum Sets

7178

4.4

Optional and Mandatory Prepayments

7178

4.5

Administrative Agent’s Fee; Other Fees

7986

4.6

Computation of Interest and Fees

8087

4.7

Inability to Determine Interest Rate

8087

4.8

Pro Rata Treatment and Payments

8189

4.9

Illegality

8290

4.10

Requirements of Law

8291

4.11

Taxes

8492

4.12

Indemnity

8796

4.13

Certain Rules Relating to the Payment of Additional Amounts

8897

Section 5 Representations and Warranties

8998

 

 

5.1

Financial Condition

8998

5.2

No Change; Solvent

9098

5.3

Corporate Existence; Compliance with Law

9099

5.4

Corporate Power; Authorization; Enforceable Obligations

9099

5.5

No Legal Bar

9099

5.6

No Material Litigation

9199

5.7

No Default

91100

5.8

Ownership of Property; Liens

91100

5.9

Intellectual Property

91100

5.10

Taxes

91100

5.11

Federal Regulations

92100

5.12

ERISA

92100

5.13

Collateral

92101

 

-i-


 

 

Page

 

 

5.14

Investment Company Act; Other Regulations

93102

5.15

Subsidiaries

93102

5.16

Purpose of Loans

93102

5.17

Environmental Matters

93102

5.18

No Material Misstatements

94103

5.19

[Reserved]DAC6

94103

5.20

Insurance

94103

5.21

Anti-Terrorism

94103

Section 6 Conditions Precedent

94103

 

 

6.1

Conditions to Initial Extension of Credit

94103

Section 7 Affirmative Covenants

96105

 

 

7.1

Financial Statements

96105

7.2

Certificates; Other Information

97106

7.3

Payment of Taxes

98107

7.4

Conduct of Business and Maintenance of Existence; Compliance with Contractual Obligations and Requirements of Law

98107

7.5

Maintenance of Property; Insurance

98107

7.6

Inspection of Property; Books and Records; Discussions

99108

7.7

Notices

100108

7.8

Environmental Laws

101109

7.9

After-Acquired Real Property and Fixtures; Subsidiaries

101110

7.10

Use of Proceeds

104113

7.11

Commercially Reasonable Efforts to Maintain Ratings

104113

7.12

Accounting Changes

104113

7.13

Post-Closing Security Perfection

104113

7.14

Taxes

104113

Section 8 Negative Covenants

104113

 

 

8.1

Limitation on Indebtedness

104113

8.2

Limitation on Restricted Payments

108118

8.3

Limitation on Restrictive Agreements

112121

8.4

Limitation on Sales of Assets and Subsidiary Stock

113123

8.5

Limitations on Transactions with Affiliates

115125

8.6

Limitation on Liens

116126

8.7

Limitation on Fundamental Changes

117126

8.8

Change of Control; Limitation on Amendments

119129

8.9

Limitation on Lines of Business

120129

Section 9 Events of Default

120129

 

 

9.1

Events of Default

120129

9.2

Remedies Upon an Event of Default

122131

Section 10 The Agents and the Other Representatives

122132

 

 

10.1

Appointment

122132

10.2

The Administrative Agent and Affiliates

123132

10.3

Action by an Agent

123132

10.4

Exculpatory Provisions

123133

10.5

Acknowledgement and Representations by Lenders

124133

10.6

Indemnity; Reimbursement by Lenders

126135

10.7

Right to Request and Act on Instructions

126136

10.8

Collateral Matters

127136

10.9

Successor Agent

128138

 

-ii-


 

 

Page

 

 

10.10

Parallel Debt

129138

10.11

Withholding Tax

129139

10.12

Other Representatives

129139

10.13

Administrative Agent May File Proofs of Claim

130139

10.14

Application of Proceeds

130140

10.15

Recovery of Erroneous Payments

140

Section 11 Miscellaneous

131141

 

 

11.1

Amendments and Waivers

131141

11.2

Notices

133143

11.3

No Waiver; Cumulative Remedies

135145

11.4

Survival of Representations and Warranties

135145

11.5

Payment of Expenses and Taxes

135145

11.6

Successors and Assigns; Participations and Assignments

136146

11.7

Adjustments; Set-off; Calculations; Computations

145155

11.8

Judgment

145155

11.9

Counterparts

146156

11.10

Severability

146156

11.11

Integration

146156

11.12

Governing Law

146156

11.13

Submission to Jurisdiction; Waivers

146156

11.14

Acknowledgements

147157

11.15

Waiver of Jury Trial

147157

11.16

Confidentiality

147157

11.17

Incremental Indebtedness; Additional Indebtedness

148158

11.18

USA PATRIOT Act Notice

148158

11.19

Electronic Execution of Assignments and Certain Other Documents

149159

11.20

Reinstatement

149159

11.21

Acknowledgment and Consent to Bail-In of EEAAffected Financial Institutions

149159

11.22

Joint and Several Liability; Postponement of Subrogation

149160

11.23

Acknowledgment Regarding anyAny Supported QFCs

150160

 

 

 

 

 

 

-iii-


 

 

 

SCHEDULES

 

 

 

A

--

Term B-56 Commitments

1.1(a)

--

Foreign Subsidiary Documentation Principles

1.1(e)

--

Existing Liens

1.1(f)

--

Existing Investments

5.4

--

Consents Required

5.6

--

Litigation

5.8

--

Real Property

5.9

--

Intellectual Property Claims

5.15

--

Subsidiaries

5.17

--

Environmental Matters

5.20

--

Insurance

7.2

--

Website Address for Electronic Financial Reporting

7.13

--

Post-Closing Collateral Requirements

8.1

--

Existing Indebtedness

8.5

--

Affiliate Transactions

 

EXHIBITS

 

 

 

A

--

Form of Term Loan Note

B

--

Form of Guarantee and Collateral Agreement

C

--

Reserved

D

--

Form of U.S. Tax Compliance Certificate

E

--

Form of Assignment and Acceptance

F

--

Reserved

G

--

Reserved

H

--

Form of Solvency Certificate

I‑1

--

Form of Increase Supplement

I‑2

--

Form of Lender Joinder Agreement

J‑1

--

Form of ABL Intercreditor Agreement

J‑2

--

Form of Intercreditor Agreement

K

--

Form of Affiliated Lender Assignment and Assumption

L

--

Reserved

M

--

Reserved

N

--

Form of Acceptance and Prepayment Notice

O

--

Form of Discount Range Prepayment Notice

P

--

Form of Discount Range Prepayment Offer

Q

--

Form of Solicited Discounted Prepayment Notice

R

--

Form of Solicited Discounted Prepayment Offer

S

--

Form of Specified Discount Prepayment Notice

T

--

Form of Specified Discount Prepayment Response

U

--

Form of Compliance Certificate

 

 

 

 

 

-iv-


 

 

CREDIT AGREEMENT, dated as of July 1, 2015 (as amended by Amendment No. 1 on January 19, 2017, Amendment No. 2 on November 28, 2017, Amendment No. 3 on February 23, 2019, Amendment No. 4 on February 28, 2019 and, Amendment No. 5 on November 22, 2019 and Amendment No. 6 on June 3, 2021), among UNIVAR SOLUTIONS USA INC. (formerly known as Univar USA Inc.), a Washington corporation (the “U.S. Borrower”), UNIVAR SOLUTIONS INC. (formerly known as Univar Inc.), a Delaware corporation (“Holdings”), UNIVAR NETHERLANDS HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat (statutaire zetel) in Rotterdam, the Netherlands and its registered office at Schouwburgplein 30, 3012CL Rotterdam, the Netherlands, registered with the Chamber of Commerce (Kamer van Koophandel) under number 24128225 (the Netherlands Borrower), the several banks and other financial institutions from time to time party hereto (as further defined in Subsection 1.1, the “Lenders”), and BANK OF AMERICA, N.A., as administrative agent (in such capacity and as further defined in Subsection 1.1, the “Administrative Agent”) for the Lenders hereunder and as collateral agent (in such capacity and as further defined in Subsection 1.1, the “Collateral Agent”) for the Secured Parties (as defined below).

W I T N E S S E T H:

WHEREAS, on the Amendment No. 56 Effective Date, this Agreement was amended (prior to giving effect to such amendments, the “Original Credit Agreement”) to, among other things, add the Netherlands Borrower as a borrower hereunder and permit the borrowing of the Term B-56 Loans asand effectuate the changes described herein.

NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein, the parties hereto agree as follows:

Section 1

Definitions

1.1Defined Terms.  As used in this Agreement, the following terms shall have the following meanings:

ABL Intercreditor Agreement”:  initially, the ABL Intercreditor Agreement (as defined in the Existing Term Loan Agreement), as supplemented by the joinder agreement, dated the Closing Date, among the Collateral Agent and the ABL Representative, as amended, supplemented, waived or otherwise modified from time to time; provided that upon written notice from the Borrower Representative following the Closing Date, such existing ABL Intercreditor Agreement shall be terminated and the Collateral Agent shall enter into an ABL Intercreditor Agreement substantially in the form of Exhibit J‑1 among the Collateral Agent, the ABL Representative and one or more Collateral Representatives for holders of Indebtedness permitted by this Agreement to be secured by the Collateral, with such modifications thereto as the Collateral Agent may reasonably agree.

ABL Representative”:  initially, Bank of America, N.A., in its capacity as collateral agent under the Senior ABL Agreement and the other Loan Documents (as defined therein) and any other collateral agent or representative of the holders of Senior ABL Obligations appointed as a representative for purposes related to the administration of the security documents pursuant to the Senior ABL Agreement, in such capacity as provided in the Senior ABL Agreement.

ABR”:  when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

ABR Loans”:  Loans to which the rate of interest applicable is based upon the Alternate Base Rate.

Accelerated”:  as defined in Subsection 9.1(e).

Acceleration”:  as defined in Subsection 9.1(e).

 

-1-


 

Acceptable Discount”:  as defined in Subsection 4.4(l)(iv)(2).

Acceptable Prepayment Amount”:  as defined in Subsection 4.4(l)(iv)(3).

Acceptance and Prepayment Notice”:  a written notice from the Borrower Representative setting forth the Acceptable Discount pursuant to Subsection 4.4(l)(iv)(2) substantially in the form of Exhibit N or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of Holdings.

Acceptance Date”:  as defined in Subsection 4.4(l)(iv)(2).

“Accounting Change” as defined in the definition of “GAAP.”

Acquired Indebtedness”:  Indebtedness of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case other than Indebtedness Incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition.  Acquired Indebtedness shall be deemed to be Incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.

Acquisition Indebtedness”:  Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation).

Additional Agent”:  as defined in the Intercreditor Agreement.

Additional Assets”:  (i) any property or assets that replace the property or assets that are the subject of an Asset Disposition; (ii) any property or assets (other than Indebtedness and Capital Stock) used or to be used by Holdings or a Restricted Subsidiary or otherwise useful in a Related Business, and any capital expenditures in respect of any property or assets already so used; (iii) the Capital Stock of a Person that is engaged in a Related Business and becomes a Restricted Subsidiary as a result of the acquisition of such Capital Stock by Holdings or another Restricted Subsidiary; or (iv) Capital Stock of any Person that at such time is a Restricted Subsidiary acquired from a third party.

Additional Incremental Lender”:  as defined in Subsection 2.8(b).

Additional Indebtedness”:  as defined in the Intercreditor Agreement or any Other Intercreditor Agreement, as applicable.

Additional Obligations”:  senior or subordinated Indebtedness (which Indebtedness may be (x) secured by a Lien ranking pari passu to the Lien securing the Term Loan Facilities Obligations, (y) secured by a Lien ranking junior to the Lien securing the Term Loan Facilities Obligations or (z) unsecured), including customary bridge financings, in each case issued or incurred by a Loan Party, the terms of which Indebtedness (i) do not provide for a maturity date or weighted average life to maturity earlier than the Term B-56 Loan Maturity Date or shorter than the remaining weighted average life to maturity of the Term B-56 Loans, as the case may be (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Term B-56 Loan Maturity Date or the remaining weighted average life to maturity of the Term B-56 Loans, as applicable), (ii) to the extent such Indebtedness is subordinated, provide for customary payment subordination to the Term Loan Facilities Obligations under the Loan Documents as reasonably determined by Holdings in good faith and (iii) do not provide for any mandatory repayment or redemption from the Net Cash Proceeds of Asset Dispositions (other than any Asset Disposition in respect of any assets, business or Person the acquisition of which was financed, all or in part, with such Additional Obligations and the disposition of which was contemplated by any definitive agreement in respect of such

 

-2-


 

acquisition) or Recovery Events or from Excess Cash Flow, to the extent the Net Cash Proceeds of such Asset Disposition or Recovery Event or such Excess Cash Flow are required to be applied to repay the Term B Loans hereunder pursuant to Subsection 4.4(e), on more than a ratable basis with the Term B Loans (after giving effect to any amendment in accordance with Subsection 11.1(d)(vi)); provided that (a) such Indebtedness shall not be secured by any Lien on any asset of any Loan Party that does not also secure the Term Loan Facilities Obligations, or be guaranteed by any Person other than the Loan Parties, and (b) if secured by Collateral, such Indebtedness (and all related Obligations) shall be subject to the terms of the Intercreditor Agreement or an Other Intercreditor Agreement.

Additional Obligations Documents”:  any document or instrument (including any guarantee, security agreement or mortgage) issued or executed and delivered with respect to any Additional Obligations or Rollover Indebtedness by any Loan Party.

Additional Specified Refinancing Lender”:  as defined in Subsection 2.11(b).

Adjustment Date”:  each date on or after the last day of Holdings’ first full fiscal quarter ended at least three months after the Amendment No. 2 Effective Date that is the second Business Day following receipt by the Lenders of both (a) the financial statements required to be delivered pursuant to Subsection 7.1(a) or Subsection 7.1(b), as applicable, for the most recently completed fiscal period and (b) the related Compliance Certificate required to be delivered pursuant to Subsection 7.2(a) with respect to such fiscal period.

Administrative Agent”:  as defined in the Preamble hereto and shall include any successor to the Administrative Agent appointed pursuant to Subsection 10.9.

Administrative Agent’s Office”: the Administrative Agent’s address and, as appropriate, account as set forth in Subsection 11.2(a), or such other address or account as the Administrative Agent may from time to time notify to the Borrower Representative and the Lenders.

Affected Eurodollar Rate”:  as defined in Subsection 4.7.

“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affected Loans”:  as defined in Subsection 4.9.

Affiliate”:  as to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person.  For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Affiliate Transaction”:  as defined in Subsection 8.5(a).

Affiliated Debt Fund”:  any Affiliated Lender that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in commercial loans, notes, bonds and similar extensions of credit or securities in the ordinary course, so long as (i) any such Affiliated Lender is managed as to day-to-day matters (but excluding, for the avoidance of doubt, as to strategic direction and similar matters) independently from Sponsor and any Affiliate of Sponsor that is not primarily engaged in the investing activities described above, (ii) any such Affiliated Lender has in place customary information screens between it and Sponsor and any Affiliate of Sponsor that is not primarily engaged in the investing activities described above, and (iii) neither Holdings nor any of its Subsidiaries directs or causes the direction of the investment policies of such entity.

Affiliated Lender”:  any Lender that is (i) a Permitted Affiliated Assignee or (ii) to the extent such Lender is the “beneficial owner” of at least 10.0% of the total voting power of the Voting Stock of Holdings, any other Permitted Holder.

 

-3-


 

Affiliated Lender Assignment and Assumption”:  as defined in Subsection 11.6(h)(i)(1).

Agents”:  the collective reference to the Administrative Agent and the Collateral Agent and “Agent” shall mean any of them.

Agreement”:  this Credit Agreement, as amended, supplemented, waived or otherwise modified from time to time.

Alternate Base Rate”:  for any day, a fluctuating rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1.00%) equal to the greatest of (a) the Base Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50%, (c) the LIBOR Rate plus 1.00% and (d) 1.00% per annum.  If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Rate or the LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) or (c) above, as the case may be, of the preceding sentence until the circumstances giving rise to such inability no longer exist.  Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Rate or the LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Rate or the LIBOR Rate, respectively.

Amendment”:  as defined in Subsection 8.3(c).

Amendment No. 1”: Amendment No. 1 to this Agreement, dated as of January 19, 2017, by and among the Loan Parties, the Administrative Agent and the Amendment No. 1 Consenting Lenders.

Amendment No. 1 Consenting Lender”: each Lender that provided the Administrative Agent with a counterpart to Amendment No. 1 executed by such Lender prior to the Amendment No. 1 Effective Date.

Amendment No. 1 Effective Date”: has the meaning specified in Amendment No. 1.

Amendment No. 2”: Amendment No. 2 to this Agreement, dated as of November 28, 2017, by and among the Loan Parties, the Administrative Agent, Bank of America, N.A. and the Amendment No. 2 Consenting Lenders.

Amendment No. 2 Consenting Lender”: each Lender that provided the Administrative Agent with a counterpart to Amendment No. 2 executed by such Lender prior to the Amendment No. 2 Effective Date.

Amendment No. 2 Effective Date”: has the meaning specified in Amendment No. 2.

Amendment No. 2 Lead Arrangers”:  Bank of America, N.A., Goldman Sachs Lending Partners LLC, Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A., Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., SunTrust Robinson Humphrey, Inc., Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc., BMO Capital Markets Corp., U.S. Bank National Association and Credit Suisse Securities (USA) LLC, as Joint Lead Arrangers.

Amendment No. 3”: Amendment No. 3 to this Agreement, dated as of February 23, 2019, by and between the U.S. Borrower and the Administrative Agent.

Amendment No. 4”: Amendment No. 4 to this Agreement, dated as of February 28, 2019, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.

Amendment No. 4 Acquisition”: the acquisition contemplated by that certain Agreement and Plan of Merger, dated as of September 17, 2018, by and among Nexeo Solutions, Inc., a Delaware corporation, the U.S. Borrower, Pilates Merger Sub I Corp, a Delaware corporation, and Pilates Merger Sub II LLC, a Delaware limited liability company.

 

-4-


 

Amendment No. 4 Transactions”: the entry into Amendment No. 4 on the Amendment No. 4 Effective Date, the borrowing of the Euro Term B-2 Loans and the Term B-4 Loans, the consummation of the Amendment No. 4 Acquisition, the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.

Amendment No. 4 Effective Date”: has the meaning specified in Amendment No. 4.

Amendment No. 4 Lead Arrangers”:  Goldman Sachs Bank USA, Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), Deutsche Bank Securities Inc., JPMorgan Chase Bank, N.A. and Wells Fargo Securities, LLC, as Joint Lead Arrangers.

Amendment No. 5”: Amendment No. 5 to this Agreement, dated as of November 22, 2019, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.

Amendment No. 5 Effective Date”: has the meaning specified in Amendment No. 5.

Amendment No. 5 Lead Arrangers”: Goldman Sachs Bank USA, BofA Securities, Inc., BMO Capital Markets Corp. Citigroup Global Markets Inc., Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., JPMorgan Chase Bank, N.A., Morgan Stanley Senior Funding, Inc., U.S. Bank National Association and Wells Fargo Securities, LLC, as Joint Lead Arrangers.

Amendment No. 5 Transactions”: the entry into Amendment No. 5 on the Amendment No. 5 Effective Date, the borrowing of the Term B-5 Loans, the repayment of the Euro Term B-2 Loans, the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.

“Amendment No. 6”: Amendment No. 6 to this Agreement, dated as of June 3, 2021, by and among the Loan Parties, the Administrative Agent and the Lenders party thereto.

“Amendment No. 6 Effective Date”: has the meaning specified in Amendment No. 6.

“Amendment No. 6 Lead Arrangers”: JPMorgan Chase Bank, N.A, BofA Securities, Inc., Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Wells Fargo Securities, LLC, Citigroup Global Markets Inc., Morgan Stanley Senior Funding, Inc. and BMO Capital Markets Corp., as Joint Lead Arrangers.

“Amendment No. 6 Transactions”: the entry into Amendment No. 6 on the Amendment No. 6 Effective Date, the borrowing of the Term B-6 Loans, the repayment of the Term B-3 Loans, the payment of fees and expenses in connection with the foregoing and the related transactions in connection therewith.

Amendment Transactions”: the entry into Amendment No. 2 on the Amendment No. 2 Effective Date, the borrowings and/or conversions of the Term B-3 Loans and the prepayment of the Non-Converted Term B-2 Loans and the Euro Term B-1 Loans and the payment of fees and expenses in connection with each of the foregoing and the related transactions in connection therewith.

Applicable Discount”:  as defined in Subsection 4.4(l)(iii)(2).

Applicable Margin”:  in respect of (a) Term B-3 Loans during the period from the Amendment No. 2 Effective Date until the first Adjustment Date thereafter, (i) with respect to ABR Loans, 1.50% per annum, and (ii) with respect to Eurodollar Loans, 2.50% per annum, (b) Term B-4 Loans during the period from the Amendment No. 4 Effective Date until the first Adjustment Date thereafter, (i) with respect to ABR Loans, 1.50% per annum, and (ii) with respect to Eurodollar Loans, 2.50% per annum and (c) Term B-5 Loans, (i) with respect to ABR Loans, 1.00% per annum, and (ii) with respect to Eurodollar Loans, 2.00% per annum and (b) Term B-6 Loans, during the period from the Amendment No. 6 Effective Date until the first Adjustment Date thereafter, (i) with respect to ABR Loans, 1.00% per annum, and (ii) with respect to Eurodollar Loans, 2.00% per annum.  

 

-5-


 

The Applicable Margins with respect to Term B-36 Loans and Term B-4 will be adjusted on each Adjustment Date to the applicable rate per annum set forth under the heading “Applicable Margin for Term B-36 Loans” or “Applicable Margin for Term B-4 Loans”, as applicable, on the Pricing Grid which corresponds to the Consolidated Total Leverage Ratio determined from the financial statements and Compliance Certificate relating to the end of the fiscal quarter immediately preceding such Adjustment Date; provided that in the event that the financial statements required to be delivered pursuant to Subsection 7.1(a) or 7.1(b), as applicable, and the related Compliance Certificate required to be delivered pursuant to Subsection 7.2(a), are not delivered when due, then:

(1)if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered (without giving effect to any applicable cure period) and the Applicable Margin increases from that previously in effect as a result of the delivery of such financial statements, then the Applicable Margin in respect of Term B-3 Loans, Term B-4 Loans and Term B-56 Loans during the period from the date upon which such financial statements were required to be delivered (without giving effect to any applicable cure period) until the date upon which they actually are delivered shall, except as otherwise provided in clause (3) below, be the Applicable Margin as so increased;

(2)if such financial statements and Compliance Certificate are delivered after the date such financial statements and Compliance Certificate were required to be delivered and the Applicable Margin decreases from that previously in effect as a result of the delivery of such financial statements, then such decrease in the Applicable Margin shall not become applicable until the date upon which the financial statements and Compliance Certificate actually are delivered, and

(3)if such financial statements and Compliance Certificate are not delivered prior to the expiration of the applicable cure period, then, effective upon such expiration, for the period from the date upon which such financial statements and Compliance Certificate were required to be delivered (after the expiration of the applicable cure period) until two Business Days following the date upon which they actually are delivered, the Applicable Margin with respect to the Term B-3 Loans, Term B-4 Loans and Term B-56 Loans shall be those applicable prior to the first Adjustment Date (it being understood that the foregoing shall not limit the rights of the Administrative Agent and the Lenders set forth in Subsection 9).

Approved Fund”:  as defined in Subsection 11.6(b).

Asset Disposition”:  any sale, lease, transfer or other disposition of shares of Capital Stock of a Restricted Subsidiary (other than directors’ qualifying shares, or (in the case of a Foreign Subsidiary) to the extent required by applicable law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by Holdings or any of its Restricted Subsidiaries (including any disposition by means of a merger, consolidation or similar transaction) other than (i) a disposition to Holdings or a Restricted Subsidiary, (ii) a disposition in the ordinary course of business, including any disposition of obsolete, uneconomic, surplus or worn-out property or equipment in the ordinary course of business or consistent with past practice or any disposition of inventory or goods (or other assets) held for sale or no longer used or useful in the ordinary course of business, (iii) a disposition of Cash Equivalents, Investment Grade Securities or Temporary Cash Investments, (iv) the sale or discount (with or without recourse, and on customary or commercially reasonable terms) of accounts receivable or notes receivable arising in the ordinary course of business, or the conversion or exchange of accounts receivable for notes receivable, (v) any Restricted Payment Transaction, (vi) a disposition that is governed by Subsection 8.7, (vii) any Financing Disposition, (viii) any “fee in lieu” or other disposition of assets to any Governmental Authority that continue in use by Holdings or any Restricted Subsidiary, so long as Holdings or any Restricted Subsidiary may obtain title to such assets upon reasonable notice by paying a nominal fee, (ix) any exchange of property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code or comparable law or regulation, or any exchange of equipment to be leased, rented or otherwise used in a Related Business, (x) any financing transaction with respect to property built or acquired by Holdings or any Restricted Subsidiary after the Closing Date, including any sale/leaseback transaction or asset securitization, (xi) any disposition arising from foreclosure, condemnation, eminent domain, or similar action with respect to any property or other assets, or exercise of termination rights under any lease, license, concession or other agreement, or necessary or advisable (as determined by Holdings in good faith) in order to consummate any acquisition of any Person, business or assets, or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement, (xii) any disposition

 

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of Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or an Immaterial Subsidiary, (xiii) a disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than Holdings or a Restricted Subsidiary) from whom such Restricted Subsidiary was acquired, or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), entered into in connection with such acquisition, (xiv) a disposition of not more than 5.0% of the outstanding Capital Stock of a Foreign Subsidiary that has been approved by the Board of Directors, (xv) any disposition or series of related dispositions for aggregate consideration not to exceed $50.0the greater of $85.0 million and 10.0% of LTM EBITDA, (xvi) the abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of Holdings, no longer economically practicable to maintain or useful in the conduct of, or that is not material to, the business of Holdings and its Subsidiaries taken as a whole, (xvii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other intellectual property or (xviii) any Exempt Sale and Leaseback Transaction.

Assignee”:  as defined in Subsection 11.6(b)(i).

Assignment and Acceptance”:  an Assignment and Acceptance, substantially in the form of Exhibit E hereto or any other form (including documentation generated by use of an electronic platform) approved by the Administrative Agent.

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAan Affected Financial Institution.

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule., (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation, or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings), and (c) in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-Down and Conversion Powers contained in that law or regulation.

Bank of America” means Bank of America, N.A. and its successors.

Bank Products Agreement”:  any agreement pursuant to which a bank or other financial institution agrees to provide (a) treasury services, (b) credit card, merchant card, purchasing card or stored value card services (including the processing of payments and other administrative services with respect thereto), (c) cash management services (including controlled disbursements, automated clearinghouse transactions, return items, netting, overdrafts, depository, lockbox, stop payment, electronic funds transfer, information reporting, wire transfer and interstate depository network services) and (d) other banking products or services as may be requested by Holdings or any Restricted Subsidiary (other than letters of credit and other than loans and advances. except indebtedness arising from services described in clauses (a) through (c) of this definition).

Bank Products Obligations”:  of any Person means the obligations of such Person pursuant to any Bank Products Agreement.

Bankruptcy Proceeding”:  as defined in Subsection 11.6(h)(iv).

 

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Base Rate”:  means for any day a fluctuating rate per annum equal to the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”.  The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“Benchmark” means, initially, LIBOR; provided that if a replacement of the Benchmark has occurred pursuant to Section 4.7(II) then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.

“Benchmark Replacement” means:

(1)For purposes of Section 4.7(II)(i), the first alternative set forth below that can be determined by the Administrative Agent:

(a)the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for an Available Tenor of one-month’s duration, 0.26161% (26.161 basis points) for an Available Tenor of three-months’ duration, 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, and 0.71513% (71.513 basis points) for an Available Tenor of twelve-months’ duration , or

(b)the sum of: (i) Daily Simple SOFR and (ii) 0.11448% (11.448 basis points);

provided that, if initially LIBOR is replaced with the rate contained in clause (b) above (Daily Simple SOFR plus the applicable spread adjustment) and subsequent to such replacement, the Administrative Agent determines that Term SOFR has become available and is administratively feasible for the Administrative Agent in its sole discretion, and the Administrative Agent notifies the Borrower Representative and each Lender of such availability, then from and after the beginning of the Interest Period, relevant interest payment date or payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Benchmark Replacement shall be as set forth in clause (a) above; and

(2)For purposes of Section 4.7(II)(ii), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower Representative as the replacement Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by a Relevant Governmental Body, for Dollar-denominated syndicated credit facilities at such time;

provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement and the other Loan Documents.

Any Benchmark Replacement shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for the Administrative Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and

 

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to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).

“Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark or a Governmental Authority with jurisdiction over such administrator announcing or stating that all Available Tenors are or will no longer be representative, or made available, or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement or publication, there is no successor administrator that is satisfactory to the Administrative Agent, that will continue to provide any representative tenors of such Benchmark after such specific date.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Benefited Lender”:  as defined in Subsection 11.7(a).

Board”:  the Board of Governors of the Federal Reserve System.

Board of Directors”:  for any Person, the board of directors or other governing body of such Person or, if such Person does not have such a board of directors or other governing body and is owned or managed by a single entity, the board of directors or other governing body of such entity, or, in either case, any committee thereof duly authorized to act on behalf of such board of directors or other governing body.  Unless otherwise provided, “Board of Directors” means the Board of Directors of Holdings.

Borrower” and “Borrowers”:  the U.S. Borrower, the Netherlands Borrower and each Subsidiary Borrower from time to time party hereto; provided, that, as of the Amendment No. 56 Effective Date, the “Borrowers” with respect to the Term B-3 Loans, Term B-45 Loans and Term B-56 Loans are the U.S. Borrower and the Netherlands Borrower.

Borrower Materials”: as defined in Subsection 11.2(e).

Borrower Offer of Specified Discount Prepayment”:  the offer by the Borrower Representative to make a voluntary prepayment of Term Loans at a specified discount to par pursuant to Subsection 4.4(l)(ii).

Borrower Representative”: the U.S. Borrower or such other Borrower as may be designated as the “Borrower Representative” by the Borrowers from time to time, in each case in its capacity as Borrower Representative pursuant to the provisions of Subsection 1.3.

Borrower Solicitation of Discount Range Prepayment Offers”:  the solicitation by the Borrower Representative of offers for, and the corresponding acceptance, if any, by a Lender of, a voluntary prepayment of Term Loans at a specified range at a discount to par pursuant to Subsection 4.4(l)(iii).

Borrower Solicitation of Discounted Prepayment Offers”:  the solicitation by the Borrower Representative of offers for, and the subsequent acceptance, if any, by a Lender of a voluntary prepayment of Term Loans at a discount to par pursuant to Subsection 4.4(l)(iv).

 

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Borrowing”:  the borrowing of one Type of Loan of a single Tranche from all the Lenders having Commitments or other commitments of the respective Tranche on a given date (or resulting from a conversion or conversions on such date) having, in the case of Eurodollar Loans or EURIBOR Loans, the same Interest Period.

Borrowing Date”:  any Business Day specified in a notice delivered pursuant to Subsection 2.3 as a date on which the Borrower Representative requests the Lenders to make Loans hereunder.

Business Day”:  means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office with respect to Obligations denominated in Dollars is located and:

(a)if such day relates to any interest rate settings as to a Eurodollar Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurodollar Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurodollar Loan, means any such day that is also a London Banking Day; and

(b)if such day relates to any interest rate settings as to a EURIBOR Loan denominated in Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such EURIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in respect of any such EURIBOR Loan, means a TARGET Day.; and

(c)when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day and such extension of time shall not be reflected in computing interest or fees, as the case may be.

Canadian Subsidiary”:  any Restricted Subsidiary of Holdings which is incorporated or otherwise organized under the laws of Canada or any province or territory thereof.

Capital Expenditures”:  for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities and including in all events all amounts expended or capitalized under leases evidencing Capitalized Lease Obligations) by Holdings and the Restricted Subsidiaries during such period that, in conformity with GAAP, are or are required to be included as capital expenditures on a consolidated statement of cash flows of Holdings.

Capital Stock”:  as to any Person, any and all shares or units of, rights to purchase, warrants or options for, or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity.

Capitalized Lease Obligation”:  an obligation that is required to be classified and accounted for as a capitalized lease (and, for the avoidance of doubt, not a straight-line or operating lease) for financial reporting purposes in accordance with GAAP.  The Stated Maturity of any Capitalized Lease Obligation shallamount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under the related lease.such lease prior to the first date such lease may be terminated without penalty; provided that all obligations of Holdings and its Restricted Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP as in effect on January 1, 2015 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Agreement regardless of any change in GAAP following January 1, 2015 (that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation).

Captive Insurance Subsidiary”:  any Subsidiary of Holdings that is subject to regulation as an insurance company (or any Subsidiary thereof).

 

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Cash Equivalents”:  any of the following:  (a) money, (b) securities issued or fully guaranteed or insured by the United States of America, Canada, the United Kingdom, Switzerland or a member state of the European Union or any agency or instrumentality of any thereof, (c) time deposits, certificates of deposit or bankers’ acceptances of (i) any bank or other institutional lender under this Agreement or any affiliate thereof or (ii) any commercial bank having capital and surplus in excess of $500,000,000 (or the foreign currency equivalent thereof as of the date of such investment) and the commercial paper of the holding company of which is rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c)(i) or (c)(ii) above, (e) money market instruments, commercial paper or other short-term obligations rated at least A-2 or the equivalent thereof by S&P or at least P-2 or the equivalent thereof by Moody’s (or, if at such time neither is issuing ratings, a comparable rating of another nationally recognized rating agency), (f) investments in money market funds subject to the risk limiting conditions of Rule 2a-7 or any successor rule of the SEC under the Investment Company Act of 1940, as amended, (g)  investments similar to any of the foregoing denominated in foreign currencies approved by the Board of Directors, and (h) solely with respect to any Captive Insurance Subsidiary, any investment that person is permitted to make in accordance with applicable law.

CD&R”:  Clayton, Dubilier & Rice, LLC and any successor in interest thereto, and any successor to its investment management business.

CD&R Fund VIII”:  Clayton, Dubilier & Rice Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto.

CD&R Investors”:  collectively, (i) CD&R Fund VIII, (ii) CD&R Friends & Family Fund VIII, L.P., a Cayman Islands exempted limited partnership, and any successor in interest thereto, and (iii) any Affiliate of any CD&R Investor identified in clauses (i) and (ii) of this definition.

Change in Law”:  as defined in Subsection 4.11(a).

Change of Control”:  (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders or a Parent Entity, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of Holdings; provided that (x) so long as Holdings is a Subsidiary of any Parent Entity, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of Holdings unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such Parent Entity and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the “beneficial owner”; (ii) Holdings sells or transfers, in one or a series of related transactions, all or substantially all of the assets of Holdings and its Restricted Subsidiaries to, another Person (other than one or more Permitted Holders) and any “person” (as defined in clause (i) above), other than one or more Permitted Holders or any Parent Entity, is or becomes the “beneficial owner” (as so defined), directly or indirectly, of more than 50.0% of the total voting power of the Voting Stock of the transferee Person in such sale or transfer of assets, as the case may be; provided that (x) so long as such transferee Person is a Subsidiary of a parent Person, no “person” shall be deemed to be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such transferee Person unless such “person” shall be or become a “beneficial owner” of more than 50.0% of the total voting power of the Voting Stock of such parent Person and (y) any Voting Stock of which any Permitted Holder is the “beneficial owner” shall not in any case be included in any Voting Stock of which any such “person” is the beneficial owner; or (iii) Holdings shall cease to own, directly or indirectly, 100.0% of the Capital Stock of any Borrower (or any Successor Borrower); or (iv) a “Change of Control” as defined in the Senior Notes Indenture (or any indenture or other agreement governing Refinancing Indebtedness in respect of the Senior Notes, and in each case in an aggregate principal amount equal to or greater than $150.0 million).

Change of Control Offer”:  as defined in Subsection 8.8(a).

Claim”:  as defined in Subsection 11.6(h)(iv).

 

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Closing Date”:  July 1, 2015.

Code”:  the Internal Revenue Code of 1986, as amended from time to time.

Collateral”:  (i) with respect to Holdings, the U.S. Borrower and the other Loan Parties that are Domestic Subsidiaries (including any Subsidiary Borrower that is a Domestic Subsidiary), all assets of such Loan Parties, now owned or hereafter acquired or in which such Loan Party has right, title or interest, upon which a Lien is purported to be created by any Security Document and (ii) with respect to the Netherlands Borrower, any Subsidiary Borrower that is a Foreign Subsidiary and any other Foreign Subsidiaries that become Subsidiary Guarantors pursuant to the last sentence of Subsection 7.9(b), all assets of such Loan Parties, now owned or hereafter acquired or in which such Loan Party has right, title or interest, upon which a Lien is purported to be created by any Security Document, in the case of this clause (ii), limited by and subject in all respects to the Foreign Subsidiary Documentation Principles.

Collateral Agent”:  as defined in the Preamble hereto and shall include any successor to the Collateral Agent appointed pursuant to Subsection 10.9.

Collateral Representative”:  (i) if the Intercreditor Agreement is then in effect, the Senior Priority Representative (as defined therein), (ii) the ABL Collateral Representative or Term Loan Collateral Representative with respect to the ABL Intercreditor (each as defined therein), as applicable and (iii) if any Other Intercreditor Agreement is then in effect, the Person acting as representative for the Collateral Agent and the Secured Parties thereunder for the applicable purpose contemplated by this Agreement and the Guarantee and Collateral Agreement.

Commitment”:  as to any Lender, such Lender’s Term Loan Commitments or Incremental Commitments, as the context requires.

Commodities Agreement”:  in respect of a Person, any commodity futures contract, forward contract, option or similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or beneficiary.

Commonly Controlled Entity”:  an entity, whether or not incorporated, which is under common control with Holdings within the meaning of Section 4001 of ERISA or is part of a group which includes Holdings and which is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Sections 414(m) and (o) of the Code.

Compliance Certificate”:  as defined in Subsection 7.2(a).

Conduit Lender”:  any special purpose corporation organized and administered by any Lender for the purpose of making Loans otherwise required to be made by such Lender and designated by such Lender in a written instrument delivered to the Administrative Agent (a copy of which shall be provided by the Administrative Agent to Holdings on request); provided that the designation by any Lender of a Conduit Lender shall not relieve the designating Lender of any of its obligations under this Agreement, including its obligation to fund a Loan if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all consents and waivers required or requested under this Agreement with respect to its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled to receive any greater amount pursuant to any provision of this Agreement, including Subsection 4.10, 4.11, 4.12 or 11.5, than the designating Lender would have been entitled to receive in respect of the extensions of credit made by such Conduit Lender if such designating Lender had not designated such Conduit Lender hereunder, (b) be deemed to have any Commitment or (c) be designated if such designation would otherwise increase the costs of any Facility to Holdings.

Confidential Information Memorandum”:  that certain Confidential Information Memorandum furnished to the Lenders on or about June 2015.

Consolidated Coverage Ratio”:  as of any date of determination, the ratio of (i) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the

 

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date of such determination for which consolidated financial statements of Holdings are available to (ii) Consolidated Interest Expense for such four fiscal quarters; provided that

(1)if, since the beginning of such period, Holdings or any Restricted Subsidiary has Incurred any Indebtedness or Holdings has issued any Designated Preferred Stock that remains outstanding on such date of determination or Holdings has caused any Reserved Indebtedness Amount to be deemed to be incurred during such period or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence of Indebtedness or an issuance of Designated Preferred Stock of Holdings, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Indebtedness or Designated Preferred Stock as if such Indebtedness or Designated Preferred Stock had been Incurred or issued, as applicable, on the first day of such period (except that in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding or (B) if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such calculation),

(2)if, since the beginning of such period, Holdings or any Restricted Subsidiary has repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged any Indebtedness, or any Designated Preferred Stock of Holdings, that is no longer outstanding on such date of determination (each, a “Discharge”) or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio involves a Discharge of Indebtedness (in each case other than Indebtedness Incurred under any revolving credit facility unless such Indebtedness has been repaid with an equivalent permanent reduction in commitments thereunder) or a Discharge of Designated Preferred Stock of Holdings, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving effect on a pro forma basis to such Discharge of such Indebtedness or Designated Preferred Stock, including with the proceeds of such new Indebtedness or such new Designated Preferred Stock of Holdings, as if such Discharge had occurred on the first day of such period,

(3)if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have disposed of any company, any business or any group of assets constituting an operating unit of a business, including any such disposition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Restricted Subsidiary as an Unrestricted Subsidiary (any such disposition or designation, a “Sale”), the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period and Consolidated Interest Expense for such period shall be reduced by an amount equal to (A) the Consolidated Interest Expense attributable to any Indebtedness of Holdings or any Restricted Subsidiary repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged with respect to Holdings and its continuing Restricted Subsidiaries in connection with such Sale for such period (including, but not limited to, through the assumption of such Indebtedness by another Person) plus (B) if the Capital Stock of any Restricted Subsidiary is solddisposed of in such Sale or any Restricted Subsidiary is designated as an Unrestricted Subsidiary, the Consolidated Interest Expense for such period attributable to the Indebtedness of such Restricted Subsidiary to the extent Holdings and its continuing Restricted Subsidiaries are no longer liable for such Indebtedness after such Sale,

(4)if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquired any company, any business or any group of assets constituting an operating unit of a business, including any such Investment or acquisition occurring in connection with a transaction causing a calculation to be made hereunder, or designated any Unrestricted Subsidiary as a Restricted Subsidiary (any such Investment, acquisition or designation, a “Purchase”), Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto (including the Incurrence of any related Indebtedness) as if such Purchase occurred on the first day of such period, and

 

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(5)if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have Discharged any Indebtedness or made any Sale or Purchase that would have required an adjustment pursuant to clause (2), (3) or (4) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA and Consolidated Interest Expense for such period shall be calculated after giving pro forma effect thereto as if such Discharge, Sale or Purchase occurred on the first day of such period;

provided that (in the event that Holdings shall classify Indebtedness Incurred on the date of determination as Incurred in part under Subsection 8.1(a) and in part under Subsection 8.1(b), as provided in Subsection 8.1(c)(iii)) any such pro forma calculation of Consolidated Interest Expense shall not give effect to any such Incurrence of Indebtedness on the date of determination pursuant to Subsection 8.1(b) (other than, if Holdings at its option has elected to disregard Indebtedness being Incurred on the date of determination in part under Subsection 8.1(a) for purposes of calculating the Consolidated Total Leverage Ratio for Incurring Indebtedness on the date of determination in part under Subsection 8.1(b)(x), Subsection 8.1(b)(x)) or to any Discharge of Indebtedness from the proceeds of any such Incurrence pursuant to such Subsection 8.1(b) (other than Subsection 8.1(b)(x), if the Incurrence of Indebtedness under Subsection 8.1(b)(x) is being given effect to in the calculation of the Consolidated Coverage Ratio).

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred or repaid, repurchased, redeemed, defeased or otherwise acquired, retired or discharged in connection therewith, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or a Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination.  If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness).  If any Indebtedness bears, at the option of Holdings or a Restricted Subsidiary, a rate of interest based on a prime or similar rate, a eurocurrency interbank offered rate or other fixed or floating rate, and such Indebtedness is being given pro forma effect, the interest expense on such Indebtedness shall be calculated by applying such optional rate as Holdings or such Restricted Subsidiary may designate.  If any Indebtedness that is being given pro forma effect was Incurred under a revolving credit facility, the interest expense on such Indebtedness shall be computed based upon the average daily balance of such Indebtedness during the applicable period.  Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate determined in good faith by a responsible financial or accounting officer of Holdings to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.

Consolidated EBITDA”:  for any period, the Consolidated Net Income for such period, plus (x) the following to the extent deducted in calculating such Consolidated Net Income, without duplication: (i) provision for all taxes (whether or not paid, estimated or accrued) based on income, profits, revenue or capital (including, including federal, foreign, state, provincial, territorial, local, unitary, excise, property, franchise, value added and similar taxes (such as Delaware franchise tax, Pennsylvania capital tax, and provincial capital taxes paid in Canada) and withholding taxes (including any future taxes or other levies which replace or are intended to be in lieu of such taxes and any penalties and interest, if any) related to such taxes or arising from tax examinations) and similar taxes of such Person paid or accrued during such period (including in respect of repatriated funds), any distributions made to a Parent with respect to the foregoing and the net tax expense associated with any adjustments made pursuant to the definition of “Consolidated Net Income” in each case, to the extent deducted (and not added back) in computing Consolidated Net Income, (ii) Consolidated Interest Expense, all items excluded from the definition of Consolidated Interest Expense pursuant to clause (iii) thereof (other than Special Purpose Financing Expense), any Special Purpose Financing Fees, and to the extent not reflected in Consolidated Interest Expense, costs of surety bonds in connection with financing activities, (iii) depreciation, (iv) amortization (including but not limited to amortization of goodwill and intangibles and amortization and write-off of financing costs), (v) any non-cash charges or non-cash losses,, write-downs, expenses, losses or items (provided that if any such non-cash charge, write-down, expense, loss or item represents an accrual or reserve for potential cash items in any future period, Holdings may elect not to add back such non-cash charge, expense or loss in the

 

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current period) or other items classified by Holdings as special items less other non-cash items of income increasing Consolidated Net Income (excluding any amortization of a prepaid cash item that was paid in a prior period or such non-cash item of income to the extent it represents a receipt of cash in any future period) (vi) any expenses or charges related to any equity offering, Permitted Payment, Investment or Indebtedness permitted by this Agreement (whether or not consummated or incurred, and including any offering or sale of Capital Stock to the extent the proceeds thereof were intended to be contributed to the equity capital of Holdings or its Restricted Subsidiaries), (vii) the amount of any loss attributable to any minority or non-controlling interests, (viii) all deferred financing costs written off and premiums paid in connection with any early extinguishment of Hedging Obligations or other derivative instruments, (ix) any management, monitoring, consulting and advisory fees and related expenses paid to any of the Sponsors or any of their respective Affiliates,in accordance with Section 8.5, (x) interest and investment income, (xi) the amount of loss on any Financing Disposition, and (xii) any costs or expenses pursuant to any management or employee stock option or other equity-related plan, program or arrangement, or other benefit plan, program or arrangement, or any equity subscription or equityholder agreement, to the extent funded with cash proceeds contributed to the capital of Holdings or an issuance of Capital Stock of Holdings (other than Disqualified Stock) and excluded from the calculation set forth in Subsection 8.2(a)(3)(B), (xiii) [reserved], and (xiv) with respect to any joint venture, an amount equal to the proportion of those items described in clauses (i), (iii) and (iv) above relating to such joint venture corresponding to Holdings and its Restricted Subsidiaries’ proportionate share of such joint venture’s Consolidated Net Income (determined as if such joint venture were a Restricted Subsidiary) to the extent deducted (and not added back) in computing Consolidated Net Income, plus (y) the amount of net cost savings, operating expense reductions, other operating improvements and initiatives and cost synergies projected by Holdings in good faith to be realized as the result of actions taken or to be taken on or prior to the date that is 18 months after the Closing Date, or 18 months after the consummation of any operational change, respectively (calculated on a pro forma basis as though such cost savings, reductions, improvements, initiatives and cost synergies had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions (which adjustments may be incremental to pro forma adjustments made pursuant to the proviso to the definition of “Consolidated Coverage Ratio,” “Consolidated Secured Leverage Ratio” or “Consolidated Total Leverage Ratio”).

Consolidated Interest Expense”:  for any period, (i) the total interest expense of Holdings and its Restricted Subsidiaries to the extent deducted in calculating Consolidated Net Income, net of any interest income of Holdings and its Restricted Subsidiaries, including any such interest expense consisting of (A) interest expense attributable to Capitalized Lease Obligations, (excluding for the avoidance of doubt, any lease, rental or other expense in connection with a lease that is not a Capitalized Lease Obligation), (B) amortization of debt discount, (C) interest in respect of Indebtedness of any other Person that has been Guaranteed by Holdings or any Restricted Subsidiary, but only to the extent that such interest is actually paid by Holdings or any Restricted Subsidiary, (D) non-cash interest expense, (E) the interest portion of any deferred payment obligation, and (F) commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, plus (ii) Preferred Stock dividends paid in cash in respect of Disqualified Stock of Holdings held by Persons other than Holdings or a Restricted Subsidiary or in respect of Designated Preferred Stock of Holdings pursuant to Subsections 8.2(b)(xi)(A), minus (iii) to the extent otherwise included in such interest expense referred to in clause (i) above, Special Purpose Financing Expense, accretion or accrual of discounted liabilities not constituting Indebtedness, expense resulting from discounting of Indebtedness in conjunction with recapitalization or purchase accounting, and any “additional interest” in respect of registration rights arrangements for any securities, amortization or write-off of financing costs, and any expensing of bridge, commitment or other financing fees, in each case under clauses (i) through (iii) above as determined on a Consolidated basis in accordance with GAAP; provided that gross interest expense shall be determined after giving effect to any net payments made or received by Holdings and its Restricted Subsidiaries with respect to Interest Rate Agreements.

Consolidated Net Income”:  for any period, the net income (loss) of Holdings and its Restricted Subsidiaries, determined on a Consolidated basis in accordance with GAAP and before any reduction in respect of Preferred Stock dividends; provided that, without duplication, there shall not be included in such Consolidated Net Income:

(i)any net income (loss) of any Unrestricted Subsidiary and (solely for purposes of determining the amount available for Restricted Payments under Section 8.2(a)(3)(A) and Excess Cash Flow), any net income (loss) of any Person if such Person is not Holdings or a Restricted Subsidiary, except

 

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that (A) Holdings’ or any Restricted Subsidiary’s net income of any such Person for such period shall be increased by the aggregate amount actually distributed by such Person during such period to Holdings or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in clause (ii) below), to the extent not already included therein, and (B) Holdings’ or any Restricted Subsidiary’s equity in the net loss of such Person shall be included to the extent of the aggregate Investment of Holdings or any of its Restricted Subsidiaries in such Person,

(ii)solely for purposes of determining the amount available for Restricted Payments under Subsection 8.2(a)(3)(A) and Excess Cash Flow, any net income (loss) of any Restricted Subsidiary that is not a Loan Party if such Restricted Subsidiary is subject to restrictions, directly or indirectly, on the payment of dividends or the making of similar distributions by such Restricted Subsidiary, directly or indirectly, to Holdings by operation of the terms of such Restricted Subsidiary’s charter or any agreement, instrument, judgment, decree, order, statute or governmental rule or regulation applicable to such Restricted Subsidiary or its stockholders (other than (x) restrictions that have been waived or otherwise released, (y) restrictions pursuant to this Agreement or the other Loan Documents, and (z) restrictions in effect on the Closing Date with respect to a Restricted Subsidiary and other restrictions with respect to such Restricted Subsidiary that taken as a whole are not materially less favorable to the Lenders than such restrictions in effect on the Closing Date as determined by Holdings in good faith), except that (A) Holdings’ equity in the net income of any such Restricted Subsidiary for such period shall be included in such Consolidated Net Income up to the aggregate amount of any dividend or distribution that was or that could have been made by such Restricted Subsidiary during such period to Holdings or another Restricted Subsidiary (subject, in the case of a dividend that could have been made to another Restricted Subsidiary, to the limitation contained in this clause (ii)) and (B) the net loss of such Restricted Subsidiary shall be included to the extent of the aggregate Investment of Holdings or any of its other Restricted Subsidiaries in such Restricted Subsidiary,

(iii)(x) any gain or loss realized upon the sale, abandonment or other disposition of any asset of Holdings or any Restricted Subsidiary (including pursuant to any sale/leaseback transaction) that is not sold, abandoned or otherwise disposed of in the ordinary course of business (as determined in good faith by the Board of Directors) and (y) any gain or loss realized upon the disposal, abandonment or discontinuation of operations of Holdings or any Restricted Subsidiary,

(iv)any extraordinary, unusual or nonrecurring gain, loss or charge (including fees, expenses and charges (or any amortization thereof) associated with the Transactions, the Amendment Transactions or any acquisition, merger or consolidation, whether or not completed, after the date hereof or any accounting change), any severance, relocation, consolidation, closing, integration, facilities opening, business optimization, transition or restructuring costs, charges or expenses, any signing, retention or completion bonuses, and any costs associated with curtailments or modifications to pension and post-retirement employee benefit plans,

(v)the cumulative effect of a change in accounting principles,

(vi)all deferred financing costs written off and premiums paid in connection with any early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments,

(vii)any unrealized gains or losses in respect of Hedge Agreements,

(viii)any unrealized foreign currency translation gains or losses, including in respect of Indebtedness of any Person denominated in a currency other than the functional currency of such Person,

(ix)any non-cash compensation charge arising from any grant of limited liability company interests, stock, stock options or other equity based awards,

 

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(x)to the extent otherwise included in Consolidated Net Income, any unrealized foreign currency translation gains or losses, including in respect of Indebtedness or other obligations of Holdings or any Restricted Subsidiary owing to Holdings or any Restricted Subsidiary,

(xi)any non-cash charge, expense or other impact attributable to application of the purchase or recapitalization method of accounting (including the total amount of depreciation and amortization, cost of sales or other non-cash expense resulting from the write-up of assets to the extent resulting from such purchase or recapitalization accounting adjustments), non-cash charges for deferred tax valuation allowances and non-cash gains, losses, income and expenses resulting from fair value accounting required by the applicable standard under GAAP,

(xii)expenses related to the conversion of various employee benefit programs in connection with the IPO and non-cash compensation related expenses, and

(xiii)to the extent covered by insurance and actually reimbursed (or Holdings has determined that there exists reasonable evidence that such amount will be reimbursed by the insurer and such amount is not denied by the applicable insurer in writing within 180 days and is reimbursed within 365 days of the date of such evidence (with a deduction in any future calculation of Consolidated Net Income for any amount so added back to the extent not so reimbursed within such 365-day period)), any expenses with respect to liability or casualty events or business interruption,

provided, further, that the exclusion of any item pursuant to the foregoing clauses (i) through (xiii) shall also exclude the tax impact of any such item, if applicable.

In the case of any unusual or nonrecurring gain, loss or charge not included in Consolidated Net Income pursuant to clause (iv) above in any determination thereof, Holdings will deliver a certificate of a Responsible Officer to the Administrative Agent promptly after the date on which Consolidated Net Income is so determined, setting forth the nature and amount of such unusual or nonrecurring gain, loss or charge.  Notwithstanding the foregoing, for the purpose of Subsection 8.2(a)(3)(A) only, there shall be excluded from Consolidated Net Income, without duplication, any income consisting of dividends, repayments of loans or advances or other transfers of assets from Unrestricted Subsidiaries to Holdings or a Restricted Subsidiary, and any income consisting of return of capital, repayment or other proceeds from dispositions or repayments of Investments consisting of Restricted Payments, in each case to the extent such income would be included in Consolidated Net Income and such related dividends, repayments, transfers, return of capital or other proceeds are applied by Holdings to increase the amount of Restricted Payments permitted under Subsection 8.2(a)(3)(C) or (D).

Consolidated Secured Indebtedness”:  as of any date of determination, (i) an amount equal to the Consolidated Total Indebtedness (without regard to clause (ii) of the definition thereof) as of such date that in each case is then secured by Liens on property or assets of Holdings and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby), minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and (B) Unrestricted Cash of Holdings and its Restricted Subsidiaries and (C) if included in clause (i) above, any undrawn Reserved Indebtedness Amount.

Consolidated Secured Leverage Ratio”:  as of any date of determination, the ratio of (i) the sum of (x) Consolidated Secured Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) and (y) the drawn Reserved Indebtedness Amount then secured by Liens on property or assets of Holdings and its Restricted Subsidiaries (other than property or assets held in a defeasance or similar trust or arrangement for the benefit of the Indebtedness secured thereby) to (ii) the aggregate amount of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, provided that:

(1)if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for

 

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such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;

(2)if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and

(3)if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;

provided that, in the event that Holdings shall classify Indebtedness Incurred on the date of determination as secured in part pursuant to clause (k)(1) of the “Permitted Liens” definition in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount and in part pursuant to one or more other clauses of the definition of Permitted Liens, as provided in clause (y) of the final paragraph of such definition, any calculation of the Consolidated Secured Leverage Ratio, including in the definition of “Maximum Incremental Facilities Amount,” shall not include any such Indebtedness (and shall not give effect to any Discharge of Indebtedness from the proceeds thereof) to the extent secured pursuant to any such other clause of such definition.

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination.

Consolidated Total Assets”:  as of any date of determination, the total assets, in each case reflected on the consolidated balance sheet of Holdings as at the end of the most recently ended fiscal quarter of Holdings for which a balance sheet is available, determined on a Consolidated basis in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or Liens or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).

Consolidated Total Indebtedness”:  as of any date of determination, an amount equal to (i) the aggregate principal amount of outstanding Indebtedness of Holdings and its Restricted Subsidiaries as of such date consisting of (without duplication) Indebtedness for borrowed money (including Purchase Money Obligations and unreimbursed outstanding drawn amounts in respect of funded letters of credit); Capitalized Lease Obligations; debt obligations evidenced by bonds, debentures, notes or similar instruments (but excluding surety bonds, performance bonds or similar instruments); Disqualified Stock; and (in the case of any Restricted Subsidiary that is not a Loan Party) Preferred Stock, determined on a Consolidated basis in accordance with GAAP (excluding items eliminated in Consolidation, and for the avoidance of doubt, excluding Hedging Obligations) minus (ii) the sum of (A) the amount of such Indebtedness consisting of Indebtedness of a type referred to in, or Incurred pursuant to, Subsection 8.1(b)(ix) and, (B) Unrestricted Cash of Holdings and its Restricted Subsidiaries and (C) any undrawn Reserved Indebtedness.  

Consolidated Total Leverage Ratio”:  as of any date of determination, the ratio of (i) the sum of (x) Consolidated Total Indebtedness as at such date (after giving effect to any Incurrence or Discharge of Indebtedness on such date) and (y) without duplication, the drawn Reserved Indebtedness to (ii) the aggregate amount of

 

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Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, provided that:

(1)if, since the beginning of such period, Holdings or any Restricted Subsidiary shall have made a Sale, the Consolidated EBITDA for such period shall be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets that are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;

(2)if, since the beginning of such period, Holdings or any Restricted Subsidiary (by merger, consolidation or otherwise) shall have made a Purchase (including any Purchase occurring in connection with a transaction causing a calculation to be made hereunder), Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; and

(3)if, since the beginning of such period, any Person became a Restricted Subsidiary or was merged or consolidated with or into Holdings or any Restricted Subsidiary, and since the beginning of such period such Person shall have made any Sale or Purchase that would have required an adjustment pursuant to clause (1) or (2) above if made by Holdings or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period;

provided that, for purposes of the foregoing calculation, in the event that Holdings shall classify Indebtedness Incurred on the date of determination as Incurred in part pursuant to Subsection 8.1(b)(x) (other than by reason of subclause (2) of the proviso to such clause (x)) and in part pursuant to one or more other clauses of Subsection 8.1(b) and/or (unless Holdings at its option has elected to disregard Indebtedness being Incurred on the date of determination in part pursuant to subclause (2) of the proviso to Subsection 8.1(b)(x) for purposes of calculating the Consolidated Coverage Ratio for Incurring Indebtedness on the date of determination in part under Subsection 8.1(a)) pursuant to Subsection 8.1(a) (as provided in Subsections 8.1(c)(ii) and (iii)), Consolidated Total Indebtedness shall not include any such Indebtedness Incurred pursuant to one or more such other clauses of Subsection 8.1(b) and/or pursuant to Subsection 8.1(a), and shall not give effect to any Discharge of any Indebtedness from the proceeds of any such Indebtedness being disregarded for purposes of the calculation of the Consolidated Total Leverage Ratio that otherwise would be included in Consolidated Total Indebtedness.

For purposes of this definition, whenever pro forma effect is to be given to any Sale, Purchase or other transaction, or the amount of income or earnings relating thereto, the pro forma calculations in respect thereof (including in respect of anticipated cost savings or synergies relating to any such Sale, Purchase or other transaction) shall be as determined in good faith by the Chief Financial Officer or another Responsible Officer of Holdings; provided that with respect to cost savings or synergies relating to any Sale, Purchase or other transaction, the related actions are expected by Holdings to be taken no later than 18 months after the date of determination.

Consolidated Working Capital”:  at any date, the excess of (a) the sum of all amounts (other than cash, Cash Equivalents and Temporary Cash Investments) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of Holdings at such date excluding the current portion of current and deferred income taxes over (b) the sum of all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of Holdings on such date, including deferred revenue but excluding, without duplication, (i) the current portion of any Funded Debt, (ii)all Indebtedness consisting of Loans to the extent otherwise included therein, (iii) the current portion of interest and (iv) the current portion of current and deferred income taxes.

Consolidation”:  the consolidation of the accounts of each of the Restricted Subsidiaries with those of Holdings in accordance with GAAP; provided that “Consolidation” will not include consolidation of the accounts of any Unrestricted Subsidiary, but the interest of Holdings or any Restricted Subsidiary in any Unrestricted Subsidiary will be accounted for as an investment.  The term “Consolidated” has a correlative meaning.

Contract Consideration”:  as defined in the definition of “Excess Cash Flow.”

 

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Contractual Obligation”:  as to any Person, any provision of any material security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

Contribution Amounts”:  the aggregate amount of capital contributions applied by Holdings to permit the Incurrence of Contribution Indebtedness pursuant to Subsection 8.1(b)(xi).

Contribution Indebtedness”:  Indebtedness of Holdings or any Restricted Subsidiary in an aggregate principal amount not greater than twice the aggregate amount of cash contributions (other than Excluded Contributions, the proceeds from the issuance of Disqualified Stock or contributions by Holdings or any Restricted Subsidiary) made to the capital of Holdings or such Restricted Subsidiary after the Closing Date (whether through the issuance or sale of Capital Stock or otherwise); provided that such Contribution Indebtedness (a) is Incurred within 180 days after the receipt of the related cash contribution and (b) is so designated as Contribution Indebtedness pursuant to a certificate of a Responsible Officer of Holdings on or promptly following the date of Incurrence thereof.

Converted Term B-2 Loans”: with respect to any Amendment No. 2 Consenting Lender that has indicated on its counterpart to Amendment No. 2 that it is requesting to have its Term B-2 Loans converted to Term B-3 Loans, the entire aggregate outstanding amount of the Term B-2 Loan held by such Amendment No. 2 Consenting Lender immediately prior to the Amendment No. 2 Effective Date (or such lesser amount as notified to such Amendment No. 2 Consenting Lender by the Administrative Agent prior to the Amendment No. 2 Effective Date).

Corresponding Obligations” means all Secured Obligations as they may exist from time to time, other than the Parallel Debt.

“Credit Party”: as defined in Section 10.15.

Currency Agreement”:  in respect of a Person, any foreign exchange contract, currency swap agreement or other similar agreement or arrangements (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.

“Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source).

CVC”:  CVC Capital Partners Limited.

CVC Investors”:  any funds or limited partnerships managed or advised by CVC Capital Partners Limited or any of its Affiliates or direct or indirect Subsidiaries or any investors in such funds or limited partnerships (but excluding, in each case, any portfolio companies in which such funds or limited partnerships hold an investment and excluding, in each case, any funds or entities managed or advised by CVC Credit Partners Holdings Limited or any of its direct or indirect Subsidiaries engaged in the same or a similar business to CVC Credit Partners Holdings Limited) who are investors in such funds or limited partnerships as at the Closing Date, investing directly or indirectly in the Company.

Debt Financing”:  the debt financing transactions contemplated under (a) the Loan Documents, (b) the Senior ABL Facility and (c) the Senior Notes Documents, in each case including any Interest Rate Agreements related thereto.

Declined Excess Proceeds”: as defined in Subsection 8.4(b)(iii).

Default”:  any of the events specified in Subsection 9.1, whether or not any requirement for the giving of notice (other than, in the case of Subsection 9.1(e), a Default Notice), the lapse of time, or both, or any other condition specified in Subsection 9.1, has been satisfied.

 

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Default Notice”:  as defined in Subsection 9.1(e).

Defaulting Lender”:  any Lender or Agent whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of Lender Default.

Deposit Account”:  any deposit account (as such term is defined in Article 9 of the UCC).

Designated Noncash Consideration”:  the Fair Market Value of noncash consideration received by Holdings or one of its Restricted Subsidiaries in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to a certificate of a Responsible Officer of Holdings, setting forth the basis of such valuation.

Designated Preferred Stock”:  Preferred Stock of Holdings (other than Disqualified Stock) or any Parent Entity that is issued after the Closing Date for cash (other than to Holdings or a Restricted Subsidiary) and is so designated as Designated Preferred Stock, pursuant to a certificate of a Responsible Officer of Holdings; provided that the amount of cash proceeds of such issuance shall be excluded from the calculation set forth in Subsection 8.2(a)(3)(B).

Designation Date”:  as defined in Subsection 2.10(f).

Discharge”:  as defined in clause (2) of the definition of “Consolidated Coverage Ratio.”

Discount Prepayment Accepting Lender”:  as defined in Subsection 4.4(l)(ii)(2).

Discount Range”:  as defined in Subsection 4.4(l)(iii)(1).

Discount Range Prepayment Amount”:  as defined in Subsection 4.4(l)(iii)(1).

Discount Range Prepayment Notice”:  a written notice of Borrower Solicitation of Discount Range Prepayment Offers made pursuant to Subsection 4.4(l) substantially in the form of Exhibit O.

Discount Range Prepayment Offer”:  the irrevocable written offer by a Lender, substantially in the form of Exhibit P, submitted in response to an invitation to submit offers following the Administrative Agent’s receipt of a Discount Range Prepayment Notice.

Discount Range Prepayment Response Date”:  as defined in Subsection 4.4(l)(iii)(1).

Discount Range Proration”:  as defined in Subsection 4.4(l)(iii)(3).

Discounted Prepayment Determination Date”:  as defined in Subsection 4.4(l)(iv)(3).

Discounted Prepayment Effective Date”:  in the case of a Borrower Offer of Specified Discount Prepayment, Borrower Solicitation of Discount Range Prepayment Offers or Borrower Solicitation of Discounted Prepayment Offers, or otherwise five Business Days following the receipt by each relevant Lender of notice from the Administrative Agent in accordance with Subsection 4.4(l)(ii), Subsection 4.4(l)(iii) or Subsection 4.4(l)(iv), as applicable unless a shorter period is agreed to between Holdings and the Administrative Agent.

Discounted Term Loan Prepayment”:  as defined in Subsection 4.4(l)(i).

Disinterested Directors”:  with respect to any Affiliate Transaction, one or more members of the Board of Directors of Holdings, or one or more members of the Board of Directors of a Parent Entity, having no material direct or indirect financial interest in or with respect to such Affiliate Transaction.  A member of any such Board of Directors shall not be deemed to have such a financial interest by reason of such member’s holding Capital Stock of Holdings or any Parent Entity or any options, warrants or other rights in respect of such Capital Stock or by

 

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reason of such member receiving any compensation from Holdings or any Parent Entity, as applicable, on whose Board of Directors such member serves in respect of such member’s role as director.

Disposition”:  as defined in the definition of the term “Asset Disposition” in this Subsection 1.1.

Disqualified Lender”:  (i) any competitor of Holdings and its Restricted Subsidiaries that is in the same or a similar line of business as Holdings and its Restricted Subsidiaries or any affiliate of such competitor and (ii) any Persons designated in writing by Holdings or the Sponsors to the Administrative Agent prior to the Closing Date.

Disqualified Stock”:  with respect to any Person, any Capital Stock (other than Management Stock) that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable) or upon the happening of any event (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition) (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the holder thereof (other than following the occurrence of a Change of Control or other similar event described under such terms as a “change of control” or an Asset Disposition or other disposition), in whole or in part, in each case on or prior to the Term B-56 Loan Maturity Date; provided that Capital Stock issued to any employee benefit plan, or by any such plan to any employees of Holdings or any Subsidiary, shall not constitute Disqualified Stock solely because it may be required to be repurchased or otherwise acquired or retired in order to satisfy applicable statutory or regulatory obligations.

Dollar Equivalent”: means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in Euro, the equivalent amount thereof in Dollars as determined by the Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Euro.

Dollars” and “$”:  dollars in lawful currency of the United States of America.

Domestic Subsidiary”:  any Restricted Subsidiary of Holdings other than a Foreign Subsidiary.

Dutch Loan Party”: any Loan Party incorporated in the Netherlands.

Dutch Security Documents”: as defined in Amendment No. 5.

“Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders.

“Early Opt-in Election” means the occurrence of:

(1)a determination by the Administrative Agent, or a notification by the Borrower Representative to the Administrative Agent that the Borrower Representative has made a determination, that Dollar-denominated syndicated credit facilities currently being executed, or that include language similar to that contained in Section 4.7(II), are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR, and

(2)the joint election by the Administrative Agent and the Borrower Representative to replace LIBOR with a Benchmark Replacement and the provision by the Administrative Agent of written notice of such election to the Lenders.

EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an

 

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EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;.

EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

ECF Payment Date”:  as defined in Subsection 4.4(e)(iii).

ECF Prepayment Amount”:  as defined in Subsection 4.4(e)(iii).

EMU Legislation”:  the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

Environmental Costs”:  any and all costs or expenses (including attorney’s and consultant’s fees, investigation and laboratory fees, response costs, court costs and litigation expenses, fines, penalties, damages, settlement payments, judgments and awards), of whatever kind or nature, known or unknown, contingent or otherwise, arising out of, or in any way relating to, any actual or alleged violation of, noncompliance with or liability under any Environmental Laws.  Environmental Costs include any and all of the foregoing, without regard to whether they arise out of or are related to any past, pending or threatened proceeding of any kind.

Environmental Laws”:  any and all U.S. or foreign, federal, state, provincial, territorial, local or municipal laws, rules, orders, enforceable guidelines and orders-in-council, regulations, statutes, ordinances, codes, decrees, and such requirements of any Governmental Authority properly promulgated and having the force and effect of law or other Requirements of Law (including common law) regulating, relating to or imposing liability or standards of conduct concerning protection of human health (as it relates to exposure to Materials of Environmental Concern) or the environment, as have been, or now or at any relevant time hereafter are, in effect.

Environmental Permits”:  any and all permits, licenses, registrations, notifications, exemptions and any other authorization required under any Environmental Law.

ERISA”:  the Employee Retirement Income Security Act of 1974, as amended from time to time.

ERISA Reorganization”:  with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

EURIBOR Loans”: Loans the rate of interest applicable to which is based upon the EURIBOR Rate.

EURIBOR Rate”: means, with respect to any EURIBOR Loan for any Interest Period, a rate per annum equal to the Euro interbank offered rate as administered by the European Money Markets Institute (or such other commercially available source providing quotations of that rate as may be designated by the Administrative Agent from time to time, including any Person that takes over the administration of such rate) for a deposit in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period as displayed on the Bloomberg screen page that displays such rate or on the appropriate page of such other information service which publishes that rate from time to time in place of Bloomberg or, in the event such page or service ceases to be available, on the appropriate page of such other information service that publishes such rate as the Administrative Agent, after consultation with the Borrower Representative, shall from time to time reasonably select, at approximately 11:00 a.m.,

 

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Brussels time, two Business Days prior to the commencement of such Interest Period; provided that, notwithstanding the foregoing, if the EURIBOR Rate, as determined as provided above, would otherwise be less than zero, the EURIBOR Rate shall be deemed to be zero for all purposes.

Euro”: the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

Euro Term B-1 Loan”: all “Euro Term B-1 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 2 Effective Date.

Euro Term B-2 Loan”: all “Euro Term B-2 Loans” (as defined in the Credit Agreement as of the Amendment No. 4 Effective Date) outstanding under this Agreement immediately prior to the Amendment No. 5 Effective Date.

European ABL Agreement”:  the European ABL Facility Agreement, dated as of March 24, 2014, among Univar B.V., the other Subsidiaries of Holdings from time to time party thereto, the U.S. Borrower, as guarantor, J.P. Morgan Europe Limited, as administrative agent and collateral agent, and certain other parties thereto from time to time; as such agreement was amended and restated pursuant to that certain Deed of Amendment and Restatement, dated as of December 19, 2018, and as may be further amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced. restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or other credit agreements or otherwise, except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Agreement).  Any reference to the European ABL Agreement hereunder shall be deemed a reference to each European ABL Agreement then in existence.

European ABL Facility”:  the collective reference to the European ABL Agreement, any Credit Documents (as defined therein), any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original European ABL Agreement or one or more other credit agreements, indentures (including the Indenture) or financing agreements or otherwise), except to the extent that such agreement, instrument or document expressly provides that it is not intended to be and is not a European ABL Facility.  Without limiting the generality of the foregoing, the term “European ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of Holdings as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.

Eurodollar Loans”:  Loans the rate of interest applicable to which is based upon the LIBOR Rate.

Event of Default”:  any of the events specified in Subsection 9.1, provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

Excess Cash Flow”:  for any period, an amount equal to the excess of:

(a)the sum, without duplication, of

(i)Consolidated Net Income for such period,

(ii)an amount equal to the amount of all non-cash charges to the extent deducted in calculating such Consolidated Net Income and cash receipts to the extent excluded in calculating such

 

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Consolidated Net Income (except to the extent such cash receipts are attributable to revenue or other items that would be included in calculating Consolidated Net Income for any prior period),

(iii)decreases in Consolidated Working Capital for such period (other than any such decreases arising (x) from any acquisition or disposition of (a) any business unit, division, line of business or Person or (b) any assets other than in the ordinary course of business (each, an “ECF Acquisition” or “ECF Disposition,” respectively) by Holdings and the Restricted Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification of any item from short-term to long-term or vice versa),

(iv)an amount equal to the aggregate net non-cash loss on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Disposition”) by Holdings and the Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent deducted in calculating such Consolidated Net Income,

(v)cash receipts in respect of Hedge Agreements during such period to the extent not otherwise included in calculating such Consolidated Net Income, and

(vi)any extraordinary, unusual or nonrecurring cash gain,

over

(b)the sum, without duplication, of

(i)an amount equal to the amount of all non-cash credits included in calculating such Consolidated Net Income and cash charges to the extent not deducted in calculating such Consolidated Net Income,

(ii)without duplication of amounts deducted pursuant to clause (xi) below in prior years, the amount of Capital Expenditures either made in cash or accrued during such period (provided that, whether any such Capital Expenditures shall be deducted for the period in which cash payments for such Capital Expenditures have been paid or the period in which such Capital Expenditures have been accrued shall be at Holdings’ election; provided, further, that, in no case shall any accrual of a Capital Expenditure which has previously been deducted give rise to a subsequent deduction upon the making of such Capital Expenditure in cash in the same or any subsequent period), except to the extent that such Capital Expenditures were financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries (unless such Indebtedness has been repaid),

(iii)the aggregate amount of all principal payments, purchases or other retirements of Indebtedness of Holdings and the Restricted Subsidiaries (including (A) the principal component of payments in respect of Capitalized Lease Obligations, (B) the amount of any repayment of Term Loans pursuant to Subsection 2.2(b) and 2.2(c) and (C) the amount of a mandatory prepayment of Term Loans pursuant to Subsection 4.4(e)(i) to the extent required due to an Asset Disposition that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase, but excluding (x) all other prepayments of Loans and (y) all prepayments of revolving loans, to the extent there is not an equivalent permanent reduction in commitments thereunder) made during such period, except to the extent financed with the proceeds of long-term Indebtedness of Holdings or the Restricted Subsidiaries,

(iv)an amount equal to the aggregate net non-cash gain on Asset Dispositions (or any Disposition specifically excluded from the definition of the term “Asset Dispositions”) by Holdings and the Restricted Subsidiaries during such period (other than in the ordinary course of business) to the extent included in calculating such Consolidated Net Income,

(v)increases in Consolidated Working Capital for such period (other than any such increases arising (x) from any ECF Acquisition or ECF Disposition by Holdings and the Restricted

 

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Subsidiaries completed during such period, (y) from the application of purchase accounting or (z) as a result of the reclassification from short-term to long-term or vice versa),

(vi)payments by Holdings and the Restricted Subsidiaries during such period in respect of long-term liabilities of Holdings and the Restricted Subsidiaries other than Indebtedness, to the extent not already deducted in calculating Consolidated Net Income,

(vii)without duplication of amounts deducted pursuant to clause (xi) below in prior fiscal years, the aggregate amount of cash consideration paid by Holdings and the Restricted Subsidiaries (on a consolidated basis) in connection with Investments (including acquisitions) made during such period constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among Holdings and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 to the extent that such Investments were financed with internally generated cash flow of Holdings and the Restricted Subsidiaries,

(viii)the amount of Restricted Payments (other than Investments) made in cash during such period (on a consolidated basis) by Holdings and the Restricted Subsidiaries pursuant to Subsection 8.2(b) (other than Subsection 8.2(b)(vi)), to the extent such Restricted Payments were financed with internally generated cash flow of Holdings and the Restricted Subsidiaries,

(ix)the aggregate amount of expenditures actually made by Holdings and the Restricted Subsidiaries in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period and are not deducted in calculating Consolidated Net Income,

(x)the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by Holdings and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness to the extent that such payments are not deducted in calculating Consolidated Net Income,

(xi)at Holdings’ election, without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by Holdings or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Investments constituting “Permitted Investments” (other than Permitted Investments of the type described in clause (iii) of the definition thereof and intercompany Investments by and among Holdings and its Restricted Subsidiaries) or made pursuant to Subsection 8.2 or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of Holdings following the end of such period, provided that to the extent the aggregate amount of internally generated cash actually utilized to finance such Investments and Capital Expenditures during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters,

(xii)the amount of taxes (including penalties and interest) paid in cash or tax reserves set aside or payable (without duplication) in such period to the extent they exceed the amount of tax expense deducted in calculating such Consolidated Net Income for such period,

(xiii)cash expenditures in respect of Hedge Agreements during such period to the extent not deducted in calculating such Consolidated Net Income; and

(xiv)any extraordinary, unusual or nonrecurring cash loss or charge (including fees, expenses and charges associated with the Transactions and any acquisition, merger or consolidation after the Closing Date).

Exchange Act”:  the Securities Exchange Act of 1934, as amended from time to time.

 

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Excluded Assets”:  as defined in the Guarantee and Collateral Agreement.

Excluded Contribution”:  Net Cash Proceeds, or the Fair Market Value of property or assets, received by Holdings as capital contributions to Holdings after the Closing Date or from the issuance or sale (other than to a Restricted Subsidiary) of Capital Stock (other than Disqualified Stock) of Holdings, in each case to the extent designated as an Excluded Contribution pursuant to a certificate of a Responsible Officer of Holdings and not previously included in the calculation set forth in Subsection 8.2(a)(3)(B)(x) for purposes of determining whether a Restricted Payment may be made.

Excluded Information”:  as defined in Subsection 4.4(l)(i).

Excluded Subsidiary”:  at any date of determination, any Subsidiary of Holdings:

(a)that is an Immaterial Subsidiary;

(b)that is prohibited by Requirement of Law or Contractual Obligations existing on the Closing Date (or, in the case of any newly acquired Subsidiary, in existence at the time of acquisition but not entered into in contemplation thereof) from Guaranteeing, or granting Liens to secure, the Term Loan Facilities Obligations or if Guaranteeing, or granting Liens to secure, the Term Loan Facilities Obligations would require governmental (including regulatory) consent, approval, license or authorization unless such consent, approval, license or authorization has been received;

(c)with respect to which Holdings and the Administrative Agent reasonably agree that the burden or cost or other consequences of providing a guarantee of the Term Loan Facilities Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom;

(d)with respect to which the provision of such guarantee of the Term Loan Facilities Obligations would result in material adverse tax consequences to Holdings or one of its Subsidiaries (as reasonably determined by Holdings and notified in writing to the Administrative Agent);

(e)that is a Subsidiary of a Foreign Subsidiary;

(f)that is a joint venture or Non-Wholly Owned Subsidiary;

(g)that is an Unrestricted Subsidiary;

(h)that is a Captive Insurance Subsidiary;

(i)that is a Special Purpose Entity; or

(j)that is a Subsidiary formed solely for the purpose of (x) becoming a Parent Entity, or (y) merging with Holdings in connection with another Subsidiary becoming a Parent Entity, in each case to the extent such entity becomes a Parent Entity or is merged with Holdings within 60 days of the formation thereof, or otherwise creating or forming a Parent Entity;

provided that, notwithstanding the foregoing, any Subsidiary that Guarantees the payment of the Senior Notes shall not be an Excluded Subsidiary.

Subject to the proviso in the preceding sentence, any Subsidiary that fails to meet the foregoing requirements as of the last day of the period of the most recent four consecutive fiscal quarters for which consolidated financial statements of Holdings are available shall continue to be deemed an Excluded Subsidiary hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1 with respect to such period.

 

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Excluded Taxes”:  (a) any Taxes measured by or imposed upon the net income of any Agent or Lender or its applicable lending office, or any branch or affiliate thereof, and all franchise Taxes, branch Taxes, Taxes on doing business or Taxes measured by or imposed upon the overall capital or net worth of any such Agent or Lender or its applicable lending office, or any branch or affiliate thereof, in each case imposed: (i) by the jurisdiction under the laws of which such Agent or Lender, applicable lending office, branch or affiliate is organized or is located, or in which its principal executive office is located, or any nation within which such jurisdiction is located or any political subdivision thereof; or (ii) by reason of any connection between the jurisdiction imposing such Tax and such Agent or Lender, applicable lending office, branch or affiliate other than a connection arising solely from such Agent or Lender having executed, delivered or performed its obligations under, or received payment under or enforced, this Agreement or any Notes, and (b) any Tax imposed by FATCA.

Exempt Sale and Leaseback Transaction”:  any Sale and Leaseback Transaction (a) in which the sale or transfer of property occurs within 180 days of the acquisition of such property by Holdings or any of its Subsidiaries or (b) that involves property with a book value of $100.0 million or less and is not part of a series of related Sale and Leaseback Transactions involving property with an aggregate value in excess of such amount and entered into with a single Person or group of Persons.  For purposes of the foregoing, “Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by Holdings or any of its Subsidiaries of real or personal property that has been or is to be sold or transferred by Holdings or any such Subsidiary to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of Holdings or such Subsidiary.

Existing Capitalized Lease Obligations”:  Capitalized Lease Obligations of Holdings and its Restricted Subsidiaries existing on the Closing Date.

Existing Term Loan Agreement”:  all obligations under the Fourth Amended and Restated Credit Agreement, dated as of February 22, 2013, among Holdings, as Borrower, the lending institutions from time to time parties thereto, Bank of America, N.A., as Administrative Agent, and the other institutions from time to time party thereto.

Existing Term Loans”:  as defined in Subsection 2.10(a).

Existing Term Tranche”:  as defined in Subsection 2.10(a).

Extended Term Loans”:  as defined in Subsection 2.10(a).

Extended Term Tranche”:  as defined in Subsection 2.10(a).

Extending Lender”:  as defined in Subsection 2.10(b).

Extension”:  as defined in Subsection 2.10(b).

Extension”:  as defined in Subsection 2.10(b).

Extension Amendment”:  as defined in Subsection 2.10(c).

Extension Date”:  as defined in Subsection 2.10(d).

Extension Election”:  as defined in Subsection 2.10(b).

Extension of Credit”:  as to any Lender, the making of a Loan.

Extension Request”:  as defined in Subsection 2.10(a).

Extension Request Deadline”:  as defined in Subsection 2.10(b).

 

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Extension Series”:  all Extended Term Loans that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins and amortization schedule.

Facility”:  each of (a) the Term B-56 Loans, (b) the Term B-45 Loans, (c) the Term B-3 Loans, (d) the Incremental Term Loans of the same Tranche (which, for the avoidance of doubt, shall include any Incremental Dollar Term Loans), (ed) any Extended Term Loans of the same Extension Series and (fe) any Specified Refinancing Term Loans of the same Tranche, and collectively the “Facilities.”

Fair Market Value”:  with respect to any asset or property, the fair market value of such asset or property as determined in good faith by senior management of Holdings or the Board of Directors, whose determination shall be conclusive.

FATCA”:  Sections 1471 through 1474 of the Code as in effect on the Closing Date (and any amended or successor provisions that are substantively comparable), and any regulations or other administrative authority promulgated thereunder, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with any of the foregoing and any fiscal or regulatory legislation, rules or practices adopted pursuant to any such intergovernmental agreement.

Federal District Court”:  as defined in Subsection 11.13(a).

Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

Fee Letter”:  the Fee Letter, dated as of the Closing Date, between the U.S. Borrower and the Administrative Agent.

Financing Disposition”:  any sale, transfer, conveyance or other disposition of, or creation or incurrence of any Lien on, property or assets (a) by Holdings or any Subsidiary thereof to or in favor of any Special Purpose Entity, or by any Special Purpose Subsidiary, in each case in connection with the Incurrence by a Special Purpose Entity of Indebtedness, or obligations to make payments to the obligor on Indebtedness, which may be secured by a Lien in respect of such property or assets or (b) by Holdings or any Subsidiary thereof to or in favor of any Special Purpose Entity that is not a Special Purpose Subsidiary.

FIRREA”:  the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.

first priority”:  with respect to any Lien purported to be created in any Collateral pursuant to any Security Document, that such Lien is the most senior Lien to which such Collateral is subject (subject to Liens permitted hereunder (including Permitted Liens) applicable to such Collateral which have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document (or, in the case of Collateral constituting Pledged Stock (as defined in the Guarantee and Collateral Agreement), Permitted Liens of the type described in clauses (a), (k)(4) (other than subclause (z)), (l), (m), (n), (p)(1) and, solely with respect to Permitted Liens described in the foregoing clauses, (o) of the definition thereof)).  For purposes of this definition, a Lien purported to be created in any Collateral pursuant to any Security Document will be construed as the “most senior Lien” to which such Collateral is subject, notwithstanding the existence of a Permitted Lien on the Collateral that is pari passu with the Lien on such Collateral, so long as such Permitted Lien is subject to the terms of the ABL Intercreditor Agreement and the Intercreditor Agreement or an Other Intercreditor Agreement.

 

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Fiscal Year”:  any period of 12 consecutive months ending on December 31 of any calendar year.

“Fitch”:  Fitch. Inc.

Fixed GAAP Date:  the Closing Date, provided that at any time after the Closing Date, Holdings may by written notice to the Administrative Agent elect to change the Fixed GAAP Date to be the date specified in such notice, and upon such notice, the Fixed GAAP Date shall be such date for all periods beginning on and after the date specified in such notice.

Fixed GAAP Terms:  (a) the definitions of the terms “Capital Expenditures,” “Capitalized Lease Obligation,” “Consolidated Coverage Ratio,” “Consolidated EBITDA,” “Consolidated Interest Expense,” “Consolidated Net Income,” “Consolidated Secured Indebtedness,” “Consolidated Secured Leverage Ratio,” “Consolidated Total Assets,”Consolidated Total Indebtedness,” “Consolidated Total Leverage Ratio,” “Consolidated Working Capital,” “Consolidation,” “Excess Cash Flow,” “Foreign Borrowing Base,” “Foreign Consolidated Total Assets,” “Foreign Segment Consolidated Total Assets,” “Consolidated Total Leverage Ratio,” “Consolidation” “Inventory,” “LTM EBITDA,” “North American Borrowing Base” or “Receivables,” (b) all defined terms in this Agreementthe Loan Documents to the extent used in or relating to any of the foregoing definitions, and all ratios and computations based on any of the foregoing definitions, and (c) any other term or provision of this Agreement or the Loan Documents that, at Holdings’ election, may be specified by Holdings by written notice to the Administrative Agent from time to time.

Foreign Borrowing Base”:  the sum of (1) 85% of the book value of Inventory of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties), (2) 85% of the book value of Receivables of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) and (3) cash, Cash Equivalents and Temporary Cash Investments of Holdings’ Foreign Subsidiaries (other than Canadian Subsidiaries and any Foreign Subsidiaries that are Loan Parties) (in each case, determined as of the end of the most recently ended fiscal month of Holdings for which internal consolidated financial statements of Holdings are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).

Foreign Consolidated Total AssetsLTM EBITDA”:  as of any date of determination, the sum of the Foreign Segment Consolidated Total AssetsLTM EBITDA of each Foreign Subsidiary Reporting Segment.

Foreign Pension Plan”:  a registered pension plan which is subject to applicable pension legislation other than ERISA or the Code, which a Restricted Subsidiary sponsors or maintains, or to which it makes or is obligated to make contributions.

Foreign Plan”:  each Foreign Pension Plan, deferred compensation or other retirement or superannuation plan, fund, program, agreement, commitment or arrangement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne, outside the United States of America, by Holdings or any of its Restricted Subsidiaries, other than any such plan, fund, program, agreement or arrangement sponsored by a Governmental Authority.

Foreign Segment Consolidated Total AssetsLTM EBITDA”:  with respect to each Foreign Subsidiary Reporting Segment, as of any date of determination, total assetsLTM EBITDA, in each case reflected on the consolidated balance sheet of such Foreign Subsidiary Reporting Segment as at the end of the most recently ended fiscal quarter of Holdings for which such a balance sheet is available, determined by consolidating the accounts of each of the Subsidiaries within such Foreign Subsidiary Reporting Segment in accordance with GAAP (and, in the case of any determination relating to any Incurrence of Indebtedness or any Investment, on a pro forma basis including any property or assets being acquired in connection therewith).

Foreign Subsidiary”:  any Subsidiary of Holdings (a) that is organized under the laws of any jurisdiction outside of the United States of America and any Subsidiary of such Foreign Subsidiary or (b) that is a

 

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Foreign Subsidiary Holdco.  Any subsidiary of Holdings which is organized and existing under the laws of Puerto Rico or any other territory of the United States of America shall be a Foreign Subsidiary.

Foreign Subsidiary Documentation Principles” shall mean the principles set forth in Schedule 1.1(a).

Foreign Subsidiary Holdco”:  any Restricted Subsidiary of Holdings, so long as such Restricted Subsidiary has no material assets other than securities or indebtedness of one or more Foreign Subsidiaries (or Subsidiaries thereof), intellectual property relating to such Foreign Subsidiaries (or Subsidiaries thereof), and/or other assets incidental to an ownership interest in any such securities, indebtedness, Contractual Obligations, intellectual property or Subsidiaries.  Any Subsidiary which is a Foreign Subsidiary Holdco that fails to meet the foregoing requirements as of the last day of the period for which consolidated financial statements of Holdings are available shall continue to be deemed a “Foreign Subsidiary Holdco” hereunder until the date that is 60 days following the date on which such annual or quarterly financial statements were required to be delivered pursuant to Subsection 7.1 with respect to such period.

Foreign Subsidiary Reporting Segment”:  a group of Foreign Subsidiaries of Holdings which Holdings treats as an operating segment in connection with its internal financial reporting.

Funded Debt”:  all Indebtedness of Holdings and the Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of Holdings or any Restricted Subsidiary, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including all amounts of such debt required to be paid or prepaid within one year from the date of its creation and, in the case of Holdings, Indebtedness in respect of the Term Loans.

GAAP”:  generally accepted accounting principles in the United States of America as in effect on the Fixed GAAP Date (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement), including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, and subject to the following sentence.  If at any time the SEC permits or requires U.S. domiciled companies subject to the reporting requirements of the Exchange Act to use IFRS in lieu of GAAP for financial reporting purposeswhich are in effect from time to time; provided that all terms of an accounting or financial nature used in this Agreement shall be construed, and all computations of amounts and ratios referred to in this Agreement shall be made without giving effect to any election under Accounting Standards Codification Topic 825 - Financial Instruments, or any successor thereto or comparable accounting principle (including pursuant to the Accounting Standards Codification), to value any Indebtedness of Holdings or any Subsidiary at “fair value,” as defined therein and the amount of any Indebtedness under GAAP with respect to Capitalized Lease Obligations shall be determined in accordance with the definition of Capitalized Lease Obligations.  At any time after the Amendment No. 6 Effective Date, Holdings may elect by written notice to the Administrative Agent to so use IFRSto apply IFRS accounting principles in lieu of GAAP and, upon any such notice,election references herein to GAAP shall thereafter be construed to mean (a) for periods beginning on and after the date specified in such notice, IFRS as in effect on the date specified in such notice (for purposes of the Fixed GAAP Terms) and as in effect from time to time (for all other purposes of this Agreement) and (b) for prior periods, GAAP as defined in the first sentence of this definition.  All ratios and computations based on GAAP contained in this Agreement shall be computed in conformity with GAAP.IFRS (except as otherwise provided in this Agreement); provided that any such election, once made, shall be irrevocable; provided, further, any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to Holdings’ election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP.  Holdings shall give notice of any such election made in accordance with this definition to the Administrative Agent.  For the avoidance of doubt, solely making an election (without any other action) referred to in this definition will not be treated as an incurrence of Indebtedness.

 

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If there occurs a change in IFRS or GAAP, as the case may be, following the Fixed GAAP Date and such change would cause a change in the method of calculation of any standards, terms or measures (including all computation of amounts and ratios) used in this Agreement (an “Accounting Change”) then Holdings may elect that such standards, terms or measures shall be calculated as if such Accounting Change had or had not occurred.

GDPR” means the European Union General Data Protection Regulation, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 and the Dutch GDPR Implementation Act (Uitvoeringswet Algemene verordening gegevensbescherming).

Goldman”:  Goldman, Sachs & Co. LLC, GSMP V Onshore US. Ltd., GSMP V Offshore US. Ltd., GSMP V Institutional US, Ltd. and any of their respective Affiliates.

Governmental Authority”:  the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).

GSO” means GSO Capital Partners LP, GSO COF Facility LLC and any of their respective Affiliates.

Guarantee”:  any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person; provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The term “Guarantee” used as a verb has a corresponding meaning.

Guarantee and Collateral Agreement”:  the Guarantee and Collateral Agreement delivered to the Collateral Agent as of the date hereof, substantially in the form of Exhibit B hereto, as the same may be amended, supplemented, waived or otherwise modified from time to time.

Guaranty Agreement”: (i) the Guaranty Agreement delivered by the Netherlands Borrower to the Collateral Agent as of the Amendment No. 5 Effective Date, as the same may be amended, supplemented, waived or otherwise modified from time to time and (ii) any other guaranty agreement, in form and substance reasonably satisfactory to the Collateral Agent, executed pursuant to Section 7.9.

Guarantor Subordinated Obligations”:  with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Subsidiary Guarantor under its Loan Party Guaranty pursuant to a written agreement.

Guarantors”:  the collective reference to Holdings, each Borrower (with respect to the obligations of the other Loan Parties) and each Subsidiary Guarantor; each individually, a “Guarantor.”

Hedge Agreements”:  collectively, Interest Rate Agreements, Currency Agreements and Commodities Agreements.

Hedging Obligations”:  as to any Person, the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodities Agreement.

Holdings”:  Univar Solutions Inc., a Delaware corporation (formerly known as Univar Inc.) and any successor in interest thereto.

Identified Participating Lenders”:  as defined in Subsection 4.4(l)(iii)(3).

 

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Identified Qualifying Lenders”:  as defined in Subsection 4.4(l)(iv)(3).

IFRS”:  International Financial Reporting Standards and applicable accounting requirements set by the International Accounting Standards Board or any successor thereto (or the Financial Accounting Standards Board, the Accounting Principles Board of the American Institute of Certified Public Accountants, or any successor to either such board, or the SEC, as the case may be), as in effect from time to time.

Immaterial Subsidiary”:  at any date of determination, each Restricted Subsidiary of Holdings (other than any Borrower) designated as such in writing by Holdings to the Administrative Agent that (i) (xthat (i) has not guaranteed any other Indebtedness of Holdings, (ii) contributed 5.005.0% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, and (y) had consolidated assets representing 5.005.0% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of Holdings are available; and (iiiii) together with all other Immaterial Subsidiaries designated pursuant to the preceding clause (iii), (x) contributed 5.0010.0% or less of Consolidated EBITDA for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available, and (y) had consolidated assets representing 5.0010.0% or less of Consolidated Total Assets as of the end of the most recently ended financial period for which consolidated financial statements of Holdings are available.

Increase Supplement”:  as defined in Subsection 2.8(c).

Incremental Commitment Amendment”:  as defined in Subsection 2.8(d).

Incremental Commitments”:  as defined in Subsection 2.8(a).

Incremental Dollar Term Loan”:  as defined in Subsection 2.8(d).

Incremental Indebtedness”:  Indebtedness Incurred by Holdings or any of its Restricted Subsidiaries pursuant to and in accordance with Subsection 2.8.

Incremental Lenders”:  as defined in Subsection 2.8(b).

Incremental Term Loans”:  as defined in Subsection 2.8(d).

Incremental Term Loan Commitments”:  as defined in Subsection 2.8(a).

Incur”:  issue, assume, enter into any Guarantee of, incur or otherwise become liable for; and the terms “Incurs,” “Incurred” and “Incurrence” shall have a correlative meaning; provided that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary. Accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, will be deemed not to be an Incurrence of Indebtedness.  Any Indebtedness issued at a discount (including Indebtedness on which interest is payable through the issuance of additional Indebtedness) shall be deemed Incurred at the time of original issuance of the Indebtedness at the initial accreted amount thereof.

Indebtedness”:  with respect to any Person on any date of determination (without duplication):

(i)the principal of indebtedness of such Person for borrowed money;

(ii)the principal of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;

 

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(iii)all reimbursement obligations of such Person in respect of letters of credit, bankers’ acceptances or other similar instruments (the amount of such obligations being equal at any time to the aggregate then undrawn and unexpired amount of such letters of credit, bankers’ acceptances or other instruments plus the aggregate amount of drawings thereunder that have not then been reimbursed) (except to the extent such reimbursement obligations relate to Trade Payables and such obligations are expected to be satisfied within 30 days of becoming due and payable);

(iv)all obligations of such Person to pay the deferred and unpaid purchase price of property (except Trade Payables), which purchase price is due more than one year after the date of placing such property in final service or taking final delivery and title thereto;

(v)all Capitalized Lease Obligations of such Person;

(vi)the redemption, repayment or other repurchase amount of such Person with respect to any Disqualified Stock of such Person or (if such Person is a Subsidiary of Holdings other than a Loan Party) any Preferred Stock of such Subsidiary, but excluding, in each case, any accrued dividends (the amount of such obligation to be equal at any time to the maximum fixed involuntary redemption, repayment or repurchase price for such Capital Stock, or if less (or if such Capital Stock has no such fixed price), to the involuntary redemption, repayment or repurchase price therefor calculated in accordance with the terms thereof as if then redeemed, repaid or repurchased, and if such price is based upon or measured by the fair market value of such Capital Stock, such fair market value shall be as determined in good faith by senior management of Holdings, the Board of Directors of Holdings or the Board of Directors of the issuer of such Capital Stock);

(vii)all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of Indebtedness of such Person shall be the lesser of (A) the fair market value of such asset at such date of determination (as determined in good faith by Holdings) and (B) the amount of such Indebtedness of such other Persons;

(viii)all Guarantees by such Person of Indebtedness of other Persons, to the extent so Guaranteed by such Person; and

(ix)to the extent not otherwise included in this definition, net Hedging Obligations of such Person (the amount of any such obligation to be equal at any time to the termination value of such agreement or arrangement giving rise to such Hedging Obligation that would be payable by such Person at such time);

provided that, Indebtedness shall not include (t) any obligations attributable to the exercise of dissenters’ or appraisal rights and the settlement of any claims or actions (whether actual, contingent or potential) with respect thereto, (u) any liability for federal, state, local or other taxes owed or owing to any government or other taxing authority, (v) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the respective seller, (w) obligations, to the extent such obligations constitute Indebtedness, under any agreement that has been defeased or satisfied and discharged pursuant to the terms of such agreement, (x) in connection with the purchase by Holdings or any Restricted Subsidiary of any business, any post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing (so long as (i) at the time of closing, the amount of any such payment is not determinable and (ii) to the extent such payment thereafter becomes fixed and determined, the amount is paid in a timely manner), (y) for the avoidance of doubt, any obligations or liabilities which would be required to be classified and accounted for as an operating lease for financial reporting purposes in accordance with GAAP as of December 15, 2018 or (z) any joint and several or any netting or set-off arrangement arising in each case by operation of law as a result of the existence or establishment of a fiscal unity for corporate income tax, trade tax or value added tax purposes or similar purposes or any analogous arrangement.

 

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The amount of Indebtedness of any Person at any date shall be determined as set forth above or as otherwise provided for in this Agreement, or otherwise shall equal the amount thereof that would appear as a liability on a balance sheet of such Person (excluding any notes thereto) prepared in accordance with GAAP.

Indemnified Liabilities”:  as defined in Subsection 11.5(d).

Indemnitee”:  as defined in Subsection 11.5(d).

Individual Lender Exposure”:  of any Lender, at any time, the sum of the aggregate principal amount of all Term Loans made by such Lender and then outstanding.

Initial Agreement”:  as defined in Subsection 8.3(c).

Initial Lien”:  as defined in Subsection 8.6.

Initial Term Loan”: as defined in the Original Credit Agreement.

Insolvency”:  with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

Insolvency Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).

Intellectual Property”:  as defined in Subsection 5.9.

Intercreditor Agreement”:  an intercreditor agreement substantially in the form of Exhibit J‑2 to be entered into as required by the terms hereof, as amended, supplemented, waived or otherwise modified from time to time.

Intercreditor Agreement Supplement”:  as defined in Subsection 10.8(a).

Interest Payment Date”:  (a) as to any ABR Loan, the last Business Day of each March, June, September and December to occur while such Loan is outstanding, and the final maturity date of such Loan, (b) as to any Eurodollar Loan or EURIBOR Loan having an Interest Period of three months or less, the last day of such Interest Period, and (c) as to any Eurodollar Loan or EURIBOR Loan having an Interest Period longer than three months, (i) each day which is three months, or a whole multiple thereof, after the first day of such Interest Period and (ii) the last day of such Interest Period.

Interest Period”:  with respect to any Eurodollar Loan or EURIBOR Loan:

(a)initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan or EURIBOR Loan, and ending one, two (solely in the case of Eurodollar Loans), three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower Representative in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and

(b)thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan or EURIBOR Loan, and ending one, two, three or six months (or if agreed to by each affected Lender, 12 months or a shorter period) thereafter, as selected by the Borrower Representative by irrevocable notice to the Administrative Agent not less than three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the last day of the then current Interest Period

 

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with respect thereto; provided that all of the foregoing provisions relating to Interest Periods are subject to the following:

(i)if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another calendar month in which event such Interest Period shall end on the immediately preceding Business Day;

(ii)any Interest Period that would otherwise extend beyond the applicable Maturity Date shall (for all purposes other than Subsection 4.12) end on the applicable Maturity Date; and

(iii)any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month

Interest Rate Agreement”:  with respect to any Person, any interest rate protection agreement, future agreement, option agreement, swap agreement, cap agreement, collar agreement, hedge agreement or other similar agreement or arrangement (including derivative agreements or arrangements), as to which such Person is a party or a beneficiary.

Inventory”:  goods held for sale, lease or use by a Person in the ordinary course of business, net of any reserve for goods that have been segregated by such Person to be returned to the applicable vendor for credit, as determined in accordance with GAAP.

Investment”:  in any Person by any other Person, any direct or indirect advance, loan or other extension of credit (other than to customers, dealers, licensees, franchisees, suppliers, consultants, directors, officers or employees of any Person in the ordinary course of business) or capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to, or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person.  For purposes of the definition of “Unrestricted Subsidiary” and Subsection 8.2 only, (i) “Investment” shall include the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of any Subsidiary of Holdings at the time that such Subsidiary is designated an Unrestricted Subsidiary, provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Holdings shall be deemed to continue to have a permanent “Investment” in an Unrestricted Subsidiary in an amount (if positive) equal to (x) Holdings’ “Investment” in such Subsidiary at the time of such redesignation less (y) the portion (proportionate to Holdings’ equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such redesignation, and (ii) any property transferred to or from an Unrestricted Subsidiary shall be valued at its fair market value (as determined in good faith by Holdings) at the time of such transfer and (iii) for purposes of Subsection 8.2(a)(3)(C), the amount resulting from the redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall be the Fair Market Value of the Investment in such Unrestricted Subsidiary at the time of such redesignation.  Guarantees shall not be deemed to be Investments.  The amount of any Investment outstanding at any time shall be the original cost of such Investment, reduced (at Holdings’ option) by any dividend, distribution, interest payment, return of capital, repayment or other amount or value received in respect of such Investment; provided that to the extent that the amount of Restricted Payments outstanding at any time pursuant to Subsection 8.2(a) is so reduced by any portion of any such amount or value that would otherwise be included in the calculation of Consolidated Net Income, such portion of such amount or value shall not be so included for purposes of calculating the amount of Restricted Payments that may be made pursuant to Subsection 8.2(a).

Investment Company Act”:  the Investment Company Act of 1940, as amended from time to time.

Investment Grade Rating”:  a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any equivalent rating by any other Rating Agency.

Investment Grade Securities”:  (i) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents); (ii) debt

 

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securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among Holdings and its Subsidiaries; (iii) investments in any fund that invests exclusively in investments of the type described in clauses (i) and (ii) above, which fund may also hold immaterial amounts of cash pending investment or distribution; and (iv) corresponding instruments in countries other than the United States customarily utilized for high quality investments.

Investors:  (i) the CD&R Investors, (ii) the CVC Investors, (iii) the Temasek Investors, (iv) Goldman and (v) Parcom.

IPO”:  the initial public offering of Holdings’ common stock which closed on June 23, 2015.

Junior Capital”:  collectively, any Indebtedness of any Parent Entity or Holdings that (i) is not secured by any asset of Holdings or any Restricted Subsidiary, (ii) is expressly subordinated to the prior payment in full of the Term Loan Facilities Obligations hereunder on terms consistent with those for senior subordinated high yield debt securities issued by U.S. companies sponsored by the Sponsors (as determined in good faith by Holdings, which determination shall be conclusive), (iii) has a final maturity date that is not earlier than, and provides for no scheduled payments of principal prior to, the date that is 91 days after the Term B-56 Loan Maturity Date (other than through conversion or exchange of any such Indebtedness for Capital Stock (other than Disqualified Stock) of Holdings, Capital Stock of any Parent Entity or any other Junior Capital), (iv) has no mandatory redemption or prepayment obligations other than obligations that are subject to the prior payment in full in cash of the Term Loans and (v) does not require the payment of cash interest until the date that is 91 days after the Term B-56 Loan Maturity Date.

Junior Debt”:  (i) the Senior Notes and Guarantees thereof (and Refinancing Indebtedness in respect thereof Incurred pursuant to Subsection 8.1(b)(iii)) and (ii) any Subordinated Obligations and Guarantor Subordinated Obligations.

LCA Election”:  as defined in Subsection 1.2(h).

LCA Test Date”:  as defined in Subsection 1.2(h).

Lead Arrangers”: Amendment No. 2 Lead Arrangers, Amendment No. 4 Lead Arrangers and, Amendment No. 5 Lead Arrangers and Amendment No. 6 Lead Arrangers, as applicable.

Lender Default”:  (a) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender (including any Agent in its capacity as Lender) to make available its portion of any incurrence of Loans, which refusal or failure is not cured within two Business Days after the date of such refusal or failure, (b) the failure of any Lender (including any Agent in its capacity as Lender) to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, (c) a Lender (including any Agent in its capacity as Lender) has notified Holdings or the Administrative Agent that it does not intend to comply with its funding obligations hereunder, (d) a Lender (including any Agent in its capacity as Lender) has failed, within 10 Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations hereunder (provided that such Lender Default pursuant to this clause (d) shall cease to be a Lender Default upon receipt of such confirmation by the Administrative Agent) or (e) an Agent or a Lender has admitted in writing that it is insolvent or such Agent or Lender becomes subject to a Lender-Related Distress Event.

Lender Joinder Agreement”:  as defined in Subsection 2.8(c).

Lender-Related Distress Event”:  with respect to any Agent or Lender (each, a “Distressed Person”), a voluntary or involuntary case with respect to such Distressed Person under any debt relief law, or a custodian, conservator, receiver or similar official is appointed for such Distressed Person or any substantial part of such Distressed Person’s assets, or such Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined by any Governmental Authority having regulatory authority over such Distressed Person to be, insolvent or bankrupt; provided that a Lender-Related Distress Event shall not be deemed to

 

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have occurred solely by virtue of the ownership or acquisition of any equity interests in any Agent or Lender or any person that directly or indirectly controls such Agent or Lender by a Governmental Authority or an instrumentality thereof; provided, further, that the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator with respect to an Agent or Lender or any person that directly or indirectly controls such Agent or Lender under the Dutch Financial Supervision Act 2007 (as amended from time to time and including any successor legislation) shall not be a “Lender-Related Distress Event” with respect to such Agent or Lender or any person that directly or indirectly controls such Agent or Lender.

Lenders”:  the several lenders from time to time parties to this Agreement together with, in the case of any such lender that is a bank or financial institution, any affiliate of any such bank or financial institution through which such bank or financial institution elects, by notice to the Administrative Agent and Holdings, to make any Loans available to the Borrowers, provided that for all purposes of voting or consenting with respect to (a) any amendment, supplement or modification of any Loan Document, (b) any waiver of any of the requirements of any Loan Document or any Default or Event of Default and its consequences or (c) any other matter as to which a Lender may vote or consent pursuant to Subsection 11.1, the bank or financial institution making such election shall be deemed the “Lender” rather than such affiliate, which shall not be entitled to so vote or consent.

Liabilities”:  collectively, any and all claims, obligations, liabilities, causes of action, actions, suits, proceedings, investigations, judgments, decrees, losses, damages, fees, costs and expenses (including interest, penalties and fees and disbursements of attorneys, accountants, investment bankers and other professional advisors), in each case whether incurred, arising or existing with respect to third parties or otherwise at any time or from time to time.

LIBOR Rate”:  

(a)the rate per annum equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time)(such applicable rate, the “LIBOR Screen Rate”) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or

(b)for any rate calculation with respect to an ABR Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for Dollar deposits with a term of one month commencing that day;

provided that (i) in no event shall the LIBOR Rate be less than 0% and (ii) to the extent a comparable or successor rate is approved by the Administrative Agent in connection with any rate set forth in this definition, the approved rate shall be applied in a manner consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

LIBOR Successor Notice”:  as defined in Section 4.7.

LIBOR Successor Rate”:    as defined in Section 4.7.

Lien”:  any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).

Limited Condition Acquisition”:  any acquisition by one or more of Holdings and its Restricted Subsidiaries of any assets, business or Person permitted by this Agreement whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

Loan”:  each Term B-5 Loan, Term B-46 Loan, Term B-35 Loan, Incremental Term Loan, Extended Term Loan or a Specified Refinancing Term Loan, as the context shall require; collectively, the “Loans.”

 

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Loan Documents”:  this Agreement, any Notes, the Guarantee and Collateral Agreement, the Dutch Security Documents, the Guaranty Agreement, the Intercreditor Agreement (on and after the execution thereof), the ABL Intercreditor Agreement, each Other Intercreditor Agreement (on and after the execution thereof) and any other Security Documents, each as amended, supplemented, waived or otherwise modified from time to time.

Loan Parties”:  Holdings, the Borrowers and the Subsidiary Guarantors; each individually, a “Loan Party.”

Loan Party Guaranty”:  the guaranty of the Term Loan Facilities Obligations of the Borrowers under the Loan Documents provided pursuant to the Guarantee and Collateral Agreement or any Guaranty Agreement, as applicable.

London Banking Day”: any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“LTM EBITDA” means Consolidated EBITDA of Holdings measured for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements are available (which may be internal financial statements), in each case with such pro forma adjustments giving effect to such Indebtedness, acquisition or Investment, as applicable, since the start of such four quarter period and as are consistent with the pro forma adjustments set forth in the definition of “Consolidated Coverage Ratio.”

Management Advances”:  (1) loans or advances made to directors, management members, officers, employees or consultants of any Parent Entity, Holdings or any Restricted Subsidiary (x) in respect of travel, entertainment or moving-related expenses incurred in the ordinary course of business, (y) in respect of moving-related expenses incurred in connection with any closing or consolidation of any facility, or (z) in the ordinary course of business and (in the case of this clause (z)) not exceeding $50.0the greater of $70.0 million and 8.0% of LTM EBITDA in the aggregate outstanding at any time, (2) promissory notes of Management Investors acquired in connection with the issuance of Management Stock to such Management Investors, (3) Management Guarantees, or (4) other Guarantees of borrowings by Management Investors in connection with the purchase of Management Stock, which Guarantees are permitted under Subsection 8.1.

Management Agreements”:  collectively, (i) the Indemnification Agreement, dated as of November 30, 2010, among Holdings, the U.S. Borrower, CD&R and certain of its Affiliates, (ii) the Indemnification Agreement, dated as of November 30, 2010, among Holdings, the U.S. Borrower and certain Affiliates of CVC, (iii) the Fourth Amended and Restated Stockholders Agreement, among Holdings, CD&R, certain Affiliates of CD&R and CVC, and certain other parties thereto, dated as of June 23, 2015 and (iv) any other agreement primarily providing for indemnification and/or contribution for the benefit of any Permitted Holder in respect of Liabilities resulting from, arising out of or in connection with, based upon or relating to (a) any management consulting, financial advisory, financing, underwriting or placement services or other investment banking activities, (b) any offering of securities or other financing activity or arrangement of or by any Parent Entity or any of its Subsidiaries or (c) any action or failure to act of or by any Parent Entity or any of its Subsidiaries (or any of their respective predecessors); in each case as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof and of this Agreement.

Management Guarantees”:  guarantees (x) of up to an aggregate principal amount outstanding at any time of $30.0 million of borrowings by Management Investors in connection with their purchase of Management Stock or (y) made on behalf of, or in respect of loans or advances made to, directors, officers, employees or consultants of any Parent Entity, Holdings or any Restricted Subsidiary (1) in respect of travel, entertainment and moving-related expenses incurred in the ordinary course of business, or (2) in the ordinary course of business and (in the case of this clause (2)) not exceeding $15.0 million in the aggregate outstanding at any time.

Management Indebtedness”:  Indebtedness Incurred to (a) any Person other than a Management Investor of up to an aggregate principal amount outstanding at any time of $15.0 million, and (b) any Management Investor, in each case, to finance the repurchase or other acquisition of Capital Stock of Holdings, any Restricted

 

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Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) from any Management Investor, which repurchase or other acquisition of Capital Stock is permitted by Subsection 8.2.

Management Investors”:  the management members, officers, directors, employees and other members of the management of any Parent Entity, Holdings or any of their respective Subsidiaries, or family members or relatives of any of the foregoing (provided that, solely for purposes of the definition of “Permitted Holders,” such relatives shall include only those Persons who are or become Management Investors in connection with estate planning for or inheritance from other Management Investors, as determined in good faith by Holdings, which determination shall be conclusive), or trusts, partnerships or limited liability companies for the benefit of any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have the right to acquire, directly or indirectly, Capital Stock of Holdings, any Restricted Subsidiary or any Parent Entity.

Management Stock”:  Capital Stock of Holdings, any Restricted Subsidiary or any Parent Entity (including any options, warrants or other rights in respect thereof) held by any of the Management Investors.

Market Capitalization”:  an amount equal to (i) the total number of issued and outstanding shares of capital stock of Holdings or any direct or indirect parent company on the date of declaration of the relevant dividend or making of any other Restricted Payment, as applicable, multiplied by (ii) the arithmetic mean of the closing prices per share of such capital stock on the New York Stock Exchange (or, if the primary listing of such capital stock is on another exchange, on such other exchange) for the 30 consecutive trading days immediately preceding the date of declaration of such dividend.

Material Adverse Effect”:  a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of Holdings and its Restricted Subsidiaries taken as a whole, (b) the validity or enforceability as to the Loan Parties (taken as a whole) party thereto of the Loan Documents taken as a whole or (c) the rights or remedies of the Agents and the Lenders under the Loan Documents, in each case taken as a whole.

Material Subsidiaries”:  Restricted Subsidiaries of Holdings constituting, individually or in the aggregate (as if such Restricted Subsidiaries constituted a single Subsidiary), a “significant subsidiary” in accordance with Rule 1-02 under Regulation S‑X.

Materials of Environmental Concern”:  any pollutants, contaminants, hazardous or toxic substances or materials or wastes defined, listed, or regulated as such in or under, or which may give rise to liability under, any applicable Environmental Law, including gasoline, petroleum (including crude oil or any fraction thereof), petroleum products or by-products, asbestos and polychlorinated biphenyls.

Maturity Date”:  for the Term B-3 Loans and Term B-4 Loans, the Term B-3 and B-4 Loan Maturity Date, for the Term B-5 Loans, the Term B-5 Loan Maturity Date, for the Term B-6 Loans, the Term B-6 Loan Maturity Date, for any Extended Term Tranche the “Maturity Date” set forth in the applicable Extension Amendment, for any Incremental Commitments the “Maturity Date” set forth in the applicable Incremental Commitment Amendment, as the context may require and for any Specified Refinancing Tranche the “Maturity Date” set forth in the applicable Specified Refinancing Amendment.

Maximum Incremental Facilities Amount”:  at any date of determination, the sum of (i) the greater of (x) $650,000,000 and (y) Consolidated EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available plus (ii) all voluntary prepayments of the Term Loans prior to such time (other than with the proceeds of long term indebtedness) plus (iii) an additional amount if, on a pro forma basis, after giving effect to the Incurrence of such additional amount and after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments (or on the date of the initial commitment to lend such additional amount after giving pro forma effect to the Incurrence of the entire committed amount of such additional amount), the Consolidated Secured Leverage Ratio shall not exceed 4.25 to 1.00 (as set forth in an officer’s certificate of a Responsible Officer of Holdings delivered to the Administrative Agent at the time of such Incurrence, together with calculations demonstrating compliance with such ratio (it being understood that for purposes of calculating the Consolidated Secured Leverage Ratio, any additional amount Incurred pursuant to this clause (iii) shall be treated as if such amount is Consolidated Secured Indebtedness, regardless of whether such amount is actually secured)).

 

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Minimum Exchange Tender Condition”:  as defined in Subsection 2.9(b).

Minimum Extension Condition”:  as defined in Subsection 2.10(g).

Moody’s”:  Moody’s Investors Service, Inc., and its successors.

Mortgaged Fee Properties”:  the collective reference to each real property owned in fee simple by the Loan Parties listed on Schedule 5.8 or required to be mortgaged as Collateral pursuant to the requirements of Subsection 7.9, including the land and all buildings, improvements, structures and fixtures now or subsequently located thereon and owned by any such Loan Party, in each case, unless and until such time as the Mortgage on such real property is released in accordance with the terms and provisions hereof and thereof.  Notwithstanding the foregoing, from and after the Amendment No. 5 Effective Date, unless otherwise agreed by the Borrower Representative, the Specified Excluded Real Property shall not constitute a Mortgaged Fee Property.  

Mortgages”:  each of the mortgages and deeds of trust, or similar security instruments executed and delivered by any Loan Party to the Collateral Agent, as the same may be amended, supplemented, waived or otherwise modified from time to time.

Multiemployer Plan”:  a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Available Cash”:  from an Asset Disposition or Recovery Event means an amount equal to the cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or Recovery Event or received in any other non-cash form) therefrom, in each case net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be paid or to be accrued as a liability under GAAP, in each case, as a consequence of, or in respect of, such Asset Disposition or Recovery Event (including as a consequence of any transfer of funds in connection with the application thereof in accordance with Subsection 8.4), (ii) all payments made, and all installment payments required to be made, on any Indebtedness (other than Indebtedness secured by Liens that are required by the express terms of this Agreement to be pari passu with or junior to the Liens on the Collateral securing the Term Loan Facilities Obligations) (x) that is secured by any assets subject to such Asset Disposition or involved in such Recovery Event, in accordance with the terms of any Lien upon such assets, or (y) that must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition or Recovery Event, including but not limited to any payments required to be made to increase borrowing availability under any revolving credit facility, (iii) all distributions and other payments required to be made to minority interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition or Recovery Event, or to any other Person (other than Holdings or a Restricted Subsidiary) owning a beneficial interest in the assets disposed of in such Asset Disposition or subject to such Recovery Event, (iv) any liabilities or obligations associated with the assets disposed of in such Asset Disposition or involved in such Recovery Event and retained, indemnified or insured by Holdings or any Restricted Subsidiary after such Asset Disposition or Recovery Event, including pension and other post-employment benefit liabilities, liabilities related to environmental matters, and liabilities relating to any indemnification obligations associated with such Asset Disposition or Recovery Event, (v) in the case of an Asset Disposition, the amount of any purchase price or similar adjustment (x) claimed by any Person to be owed by Holdings or any Restricted Subsidiary, until such time as such claim shall have been settled or otherwise finally resolved, or (y) paid or payable by Holdings or any Restricted Subsidiary, in each case in respect of such Asset Disposition or (vi) in the case of any Recovery Event, any amount thereof that constitutes or represents reimbursement or compensation for any amount previously paid or to be paid by Holdings or any of its Subsidiaries.

Net Cash Proceeds”:  with respect to any issuance or sale of any securities of Holdings or any Subsidiary by Holdings or any Subsidiary, or any capital contribution, or any Incurrence of Indebtedness, the amount of cash proceeds of such issuance, sale, contribution or Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees actually

 

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incurred in connection with such issuance, sale, contribution or Incurrence and net of all taxes paid or payable as a result, or in respect, thereof.

Netherlands Borrower”:  as defined in the Preamble hereto.

New York Courts”:  as defined in Subsection 11.13(a).

New York Supreme Court”:  as defined in Subsection 11.13(a).

Non-Converted Term B-2 Loan”: each Term B-2 Loan (or portion thereof) other than a Converted Term B-2 Loan.

Non-Consenting Lender”:  as defined in Subsection 11.1(g).

Non-Excluded Taxes”:  all Taxes other than Excluded Taxes.

Non-Extending Lender”:  as defined in Subsection 2.10(e).

Non-Wholly Owned Subsidiary”:  each Subsidiary that is not a Wholly Owned Subsidiary.

North American Borrowing Base”:  the sum of (1) 85.0% of the book value of Inventory of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries, (2) 85.0% of the book value of Receivables of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries, and (3) cash, Cash Equivalents and Temporary Cash Investments of Holdings, its Domestic Subsidiaries and its Canadian Subsidiaries (in each case, determined as of the end of the most recently ended fiscal month of Holdings for which internal consolidated financial statements of Holdings are available, and, in the case of any determination relating to any Incurrence of Indebtedness, on a pro forma basis including (x) any property or assets of a type described above acquired since the end of such fiscal month and (y) any property or assets of a type described above being acquired in connection therewith).

Note”:  as defined in Subsection 2.2(a).

Obligations”:  with respect to any Indebtedness, any principal, premium (if any), interest (including interest and fees accruing on or after the filing of any petition in bankruptcy or for reorganization relating to Holdings or any Restricted Subsidiary whether or not a claim for post-filing interest or fees is allowed in such proceedings), fees, charges, expenses, reimbursement obligations, Guarantees of such Indebtedness (or of Obligations in respect thereof), other monetary obligations of any nature and all other amounts payable thereunder or in respect thereof.

OFAC”:  as defined in Subsection 5.21(b).

Offered Amount”:  as defined in Subsection 4.4(l)(iv)(1).

Offered Discount”:  as defined in Subsection 4.4(l)(iv)(1).

OID”:  as defined in Subsection 2.8(d).

Original Credit Agreement”:  as defined in the Preamble hereto.

Organizational Documents”:  with respect to any Person, (a) the articles of incorporation, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person and (b) the bylaws or operating agreement (or the equivalent governing documents) of such Person.

Other Intercreditor Agreement”:  an intercreditor agreement in form and substance reasonably satisfactory to Holdings and the Collateral Agent.

 

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“Other Rate Early Opt-in” means the Administrative Agent and the Borrower Representative have elected to replace LIBOR with a Benchmark Replacement other than a SOFR-based rate pursuant to (1) an Early Opt-in Election and (2) Section 4.7(II)(ii) and paragraph (2) of the definition of “Benchmark Replacement”.

Other Representatives”:  Merrill Lynch, Pierce, Fenner & Smith Incorporated, Goldman Sachs Lending Partners LLC, Deutsche Bank Securities Inc., J.P. Morgan Securities LLC, Wells Fargo Securities, LLC, HSBC Securities (USA) Inc., SunTrust Robinson Humphrey, Inc., Morgan Stanley Senior Funding, Inc., Barclays Bank PLC, Citigroup Global Markets Inc. and Credit Suisse Securities (USA) LLC, in their capacities as Joint Lead Arrangers and Joint Bookrunners.

Outstanding Amount”:  with respect to the Loans on any date, the Dollar Equivalent of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments thereof occurring on such date.

Parallel Debt” has the meaning given to that term in paragraph (a) of Section 10.10.

Parcom” means Parcom Buy Out Fund II B.V. and any of its Affiliates.

Parent Entity”:  any Other Parent and any other Person that is a Subsidiary of any Other Parent and of which Holdings is a Subsidiary.  As used herein, “Other Parent” means a Person of which Holdings becomes a Subsidiary after the Closing Date that is designated by Holdings as an “Other Parent” and solely for so long as Holdings remains a Subsidiary of such Person, provided that either (x) immediately after Holdings first becomes a Subsidiary of such Person, more than 50.0% of the Voting Stock of such Person shall be held by one or more Persons that held more than 50.0% of the Voting Stock of Holdings or a Parent Entity of Holdings immediately prior to Holdings first becoming such Subsidiary or (y) such Person shall be deemed not to be an Other Parent for the purpose of determining whether a Change of Control shall have occurred by reason of Holdings first becoming a Subsidiary of such Person.  Holdings shall not in any event be deemed to be a “Parent Entity.”

Parent Expenses”:  (i) costs (including all professional fees and expenses) incurred by any Parent Entity in connection with maintaining its existence or in connection with its reporting obligations under, or in connection with compliance with, applicable laws or applicable rules of any governmental, regulatory or self-regulatory body or stock exchange, this Agreement or any other agreement or instrument relating to Indebtedness of Holdings or any Restricted Subsidiary, including in respect of any reports filed with respect to the Securities Act, the Exchange Act or the respective rules and regulations promulgated thereunder, (ii) expenses incurred by any Parent Entity in connection with the acquisition, development, maintenance, ownership, prosecution, protection and defense of its intellectual property and associated rights (including but not limited to trademarks, service marks, trade names, trade dress, patents, copyrights and similar rights, including registrations and registration or renewal applications in respect thereof; inventions, processes, designs, formulae, trade secrets, know-how, confidential information, computer software, data and documentation, and any other intellectual property rights; and licenses of any of the foregoing), or assertions of infringement, misappropriation, dilution or other violation of third-party intellectual property or associated rights, to the extent such intellectual property and associated rights or assertions relate to the business or businesses of Holdings or any Subsidiary thereof, (iii) indemnification obligations of any Parent Entity owing to directors, officers, employees or other Persons under its charter or by-laws or pursuant to written agreements with or for the benefit of any such Person (including pursuant to certain Management Agreements), or obligations in respect of director and officer insurance (including premiums therefor), (iv) other administrative and operational expenses of any Parent Entity incurred in the ordinary course of business, and (v) fees and expenses incurred by any Parent Entity in connection with maintenance and implementation of any management equity incentive plan associated with the management of Holdings and its Subsidiaries, and (vi) fees and expenses incurred by any Parent Entity in connection with any offering of Capital Stock or Indebtedness, (w) which offering is not completed, or (x) where the net proceeds of such offering are intended to be received by or contributed or loaned to Holdings or a Restricted Subsidiary, or (y) in a prorated amount of such expenses in proportion to the amount of such net proceeds intended to be so received, contributed or loaned, or (z) otherwise on an interim basis prior to completion of such offering so long as any Parent Entity shall cause the amount of such expenses to be repaid to Holdings or the relevant Restricted Subsidiary out of the proceeds of such offering promptly if completed.

 

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Pari Passu Indebtedness”:  Indebtedness with a Lien on the Collateral ranking pari passu with the Liens securing the Term Loan Facilities Obligations.

Participant”:  as defined in Subsection 11.6(c).

Participant Register”:  as defined in Subsection 11.6(b)(v).

Participating Lender”:  as defined in Subsection 4.4(l)(iii)(2).

Participating Member State”:  each state so described in any EMU Legislation.

Patriot Act”:  as defined in Subsection 11.18.

PBGC”:  the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).

Permitted Affiliated Assignee”:  the Sponsors, any investment fund managed or controlled by any Sponsor and any special purpose vehicle established by any Sponsor or by one or more of such investment funds.

Permitted Debt Exchange”:  as defined in Subsection 2.9(a).

Permitted Debt Exchange Notes”:  as defined in Subsection 2.9(a).

Permitted Debt Exchange Offer”:  as defined in Subsection 2.9(a).

Permitted Holders”:  any of the following:  (i) any of the Investors; (ii) any of the Management Investors, CD&R, CVC and their respective Affiliates; (iii) any investment fund or vehicle managed, sponsored or advised by CD&R, CVC, or any Affiliate thereof, and any Affiliate of or successor to any such investment fund or vehicle; (iv) any limited or general partners of, or other investors in, any CD&R Investor, CVC Investor or any Affiliate thereof, or any such investment fund or vehicle; and (v)ii) any Person acting in the capacity of an underwriter (solely to the extent that and for so long as such Person is acting in such capacity) in connection with a public or private offering of Capital Stock of any Parent Entity or Holdings.  In addition, any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the Closing Date) whose status as a “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date) constitutes or results in a Change of Control in respect of which Holdings makes a Change of Control Offer pursuant to Subsection 8.8(a) (whether or not in connection with any repayment or repurchase of Indebtedness outstanding pursuant to Junior Debt), together with its Affiliates, shall thereafter constitute Permitted Holders.

Permitted Investment”:  an Investment by Holdings or any Restricted Subsidiary in, or consisting of, any of the following:

(i)a Restricted Subsidiary, Holdings, or a Person that will, upon the making of such Investment, become a Restricted Subsidiary (and any Investment held by such Person that was not acquired by such Person, or made pursuant to a commitment by such Person that was not entered into, in contemplation of so becoming a Restricted Subsidiary);

(ii)another Person if as a result of such Investment such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, or is liquidated into, Holdings or a Restricted Subsidiary (and, in each case, any Investment held by such other Person that was not acquired by such Person, or made pursuant to a commitment by such Person that was not entered into, in contemplation of such merger, consolidation or transfer);

(iii)Temporary Cash Investments, Investment Grade Securities or Cash Equivalents;

 

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(iv)receivables owing to Holdings or any Restricted Subsidiary, if created or acquired in the ordinary course of business;

(v)any securities or other Investments received as consideration in, or retained in connection with, sales or other dispositions of property or assets, including Asset Dispositions made in compliance with Subsection 8.4;

(vi)securities or other Investments received in settlement of debts created in the ordinary course of business and owing to, or of other claims asserted by, Holdings or any Restricted Subsidiary, or as a result of foreclosure, perfection or enforcement of any Lien, or in satisfaction of judgments, including in connection with any bankruptcy proceeding or other reorganization of another Person;

(vii)Investments in existence or made pursuant to legally binding written commitments in existence on the Closing Date and set forth on Schedule 1.1(f), and in each case any extension, modification, replacement, reinvestment or renewal thereof; provided that the amount of any such Investment may be increased in such extension, modification, replacement, reinvestment or renewal only (x) as required by the terms of such Investment or binding commitment as in existence on the Closing Date or (y) as otherwise permitted by this Agreement;

(viii)Currency Agreements, Interest Rate Agreements, Commodities Agreements and related Hedging Obligations, which obligations are Incurred in compliance with Subsection 8.1;

(ix)pledges or deposits (x) with respect to leases or utilities provided to third parties in the ordinary course of business or (y) otherwise described in the definition of “Permitted Liens” or made in connection with Liens permitted under Subsection 8.6;

(x)(1) Investments in or by any Special Purpose Subsidiary, or in connection with a Financing Disposition by, to, in or in favor of any Special Purpose Entity, including Investments of funds held in accounts permitted or required by the arrangements governing such Financing Disposition or any related Indebtedness, or (2) any promissory note issued by Holdings or any Parent Entity, provided that if such Parent Entity receives cash from the relevant Special Purpose Entity in exchange for such note, an equal cash amount is contributed by any Parent Entity to Holdings;

(xi)bonds secured by assets leased to and operated by Holdings or any Restricted Subsidiary that were issued in connection with the financing of such assets so long as Holdings or any Restricted Subsidiary may obtain title to such assets at any time by paying a nominal fee, canceling such bonds and terminating the transaction;

(xii)[reserved];

(xiii)any Investment to the extent made using Capital Stock of Holdings (other than Disqualified Stock), Capital Stock of any Parent Entity or Junior Capital as consideration;

(xiv)Management Advances;

(xv)Investments in Related Businesses in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $500.0 million and 8.50% of Consolidated Total Assets;

(xvi)any transaction to the extent it constitutes an Investment that is permitted by and made in accordance with the provisions of Subsection 8.5(b) (except transactions described in clauses (i), (ii)(4), (iii), (v), (vi), (ix) and (x) therein), including any Investment pursuant to any transaction described in Subsection 8.5(b)(ii) (whether or not any Person party thereto is at any time an Affiliate of Holdings);

 

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(xvii)any Investment by any Captive Insurance Subsidiary in connection with the provision of insurance to Holdings or any of its Subsidiaries, which Investment is made in the ordinary course of business of such Captive Insurance Subsidiary, or by reason of applicable law, rule, regulation or order, or that is required or approved by any regulatory authority having jurisdiction over such Captive Insurance Subsidiary or its business, as applicable; and

(xviii)other Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $500.0 million and 8.50% of Consolidated Total Assets.

(xviii)other Investments in an aggregate amount outstanding at any time not to exceed an amount equal to the greater of $600.0 million and 65% of LTM EBITDA (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value), plus the amount of any returns (including dividends, payments, interest, distributions, returns of principal, profits on sale, repayments, income and similar amounts) in respect of such Investments (without duplication of any amounts applied pursuant to Subsection 8.2(a)(3)) with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value; provided, however, that if any Investment pursuant to this clause is made in any Person that is not Holdings or a Restricted Subsidiary at the date of the making of such Investment and such Person becomes Holdings or a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (i) above and shall cease to have been made pursuant to this clause (xviii);

(xix)Investments consisting of purchases or other acquisitions of inventory, supplies, services, material or equipment or the licensing (including sublicensing) of intellectual property pursuant to joint marketing or similar arrangements with other Persons;

(xx)any Investment in any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business or consistent with past practice;

(xxii)Investments made in the ordinary course of business or consistent with past practice in connection with obtaining, maintaining or renewing client contracts and loans or advances made to distributors in the ordinary course of business or consistent with past practice; and

(xxiii)any other Investment so long as, immediately after giving pro forma effect to the Investment and the incurrence of any Indebtedness the net proceeds of which are used to make such Investment, the Consolidated Total Leverage Ratio shall be no greater than 4.00 to 1.00.

If any Investment pursuant to clause (xv) or (xviii) above, or Subsection 8.2(b)(vi) or 8.2(b)(xv), as applicable, is made in any Person that is not a Restricted Subsidiary and such Person thereafter (A) becomes a Restricted Subsidiary or (B) is merged or consolidated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, Holdings or a Restricted Subsidiary, then such Investment shall thereafter be deemed to have been made pursuant to clause (i) or (ii) above, respectively, and not clause (xv) or (xviii) above, or Subsection 8.2(b)(vi) or 8.2(b)(xv), as applicable.

Permitted Liens”:

(a)Liens for taxes, assessments or other governmental charges not yet delinquent or the nonpayment of which in the aggregate would not reasonably be expected to have a material adverse effect on Holdings and its Restricted Subsidiaries, taken as a whole, or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of Holdings or a Subsidiary thereof, as the case may be, in accordance with GAAP;

 

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(b)Liens with respect to outstanding motor vehicle fines and carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business in respect of obligations that are not overdue for a period of more than 60 days or that are bonded or that are being contested in good faith and by appropriate proceedings;

(c)pledges, deposits or Liens in connection with workers’ compensation, professional liability insurance, insurance programs, unemployment insurance and other social security and other similar legislation or other insurance-related obligations (including pledges or deposits securing liability to insurance carriers under insurance or self-insurance arrangements);

(d)pledges, deposits or Liens to secure the performance of bids, tenders, trade, government or other contracts (other than for borrowed money), obligations for utilities, leases, licenses, statutory obligations, completion guarantees, surety, judgment, appeal or performance bonds, other similar bonds, instruments or obligations, and other obligations of a like nature incurred in the ordinary course of business;

(e)(i) easements (including reciprocal easement agreements), rights-of-way, building, zoning and similar restrictions, utility agreements, covenants, reservations, restrictions, encroachments, charges, and other similar encumbrances or title defects or irregularities incurred, or(ii) any other matters that would be disclosed in an accurate survey affecting real property or (iii) leases or subleases granted, licensed or sublicensed, or occupancy agreements granted to others, whether or not of record, and whether now in existence or hereafter entered into in the ordinary course of business, which do not in the aggregate materially interfere with the ordinary conduct of the business of Holdings and its Restricted Subsidiaries, taken as a whole;

(f)Liens existing on, or provided for under written arrangements existing on, the Closing Date and set forth on Schedule 1.1(e), or (in the case of any such Liens securing Indebtedness of Holdings or any of its Subsidiaries existing or arising under written arrangements existing on the Closing Date) securing any Refinancing Indebtedness in respect of such Indebtedness (other than Indebtedness Incurred under Subsection 8.1(b)(i) and secured under clause (k)(1) of this definition), so long as the Lien securing such Refinancing Indebtedness is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or under such written arrangements could secure) the original Indebtedness;

(g)(i) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which Holdings or any Restricted Subsidiary of Holdings has easement rights or on any leased property and subordination or similar agreements relating thereto and (ii) any condemnation or eminent domain proceedings affecting any real property;

(h)Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Hedging Obligations, Bank Products Obligations, Purchase Money Obligations or Capitalized Lease Obligations Incurred in compliance with Subsection 8.1;

(i)Liens arising out of judgments, decrees, orders or awards in respect of which Holdings or any Restricted Subsidiary shall in good faith be prosecuting an appeal or proceedings for review, which appeal or proceedings shall not have been finally terminated, or if the period within which such appeal or proceedings may be initiated shall not have expired;

(j)leases, subleases, licenses or, sublicenses or occupancy agreements to or from third parties;

(k)Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of (1) Indebtedness Incurred in compliance with Subsection 8.1(b)(i); provided, that any Liens on Collateral securing Permitted Debt Exchange Notes, Rollover Indebtedness or Additional Obligation (or any Refinancing Indebtedness in respect of any of the foregoing) shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (2) Indebtedness Incurred in compliance with clauses (b)(iv), (b)(v), (b)(vii), (b)(viii), (b)(xv) or clauses (b)(iii)(B) and (C) of Subsection 8.1 (other than Refinancing Indebtedness Incurred in respect of Indebtedness described in Subsections 8.1(a)), (3) any Indebtedness Incurred in compliance with Subsection

 

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8.1(b)(xiii), provided that any Liens securing such Indebtedness shall rank junior to the Liens securing the Term Loan Facilities Obligations and shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, (4) (A) Acquisition Indebtedness Incurred in compliance with Subsection 8.1(b)(x) or (xi), provided that (x) such Liens are limited to all or part of the same property or assets, including Capital Stock (plus improvements, accessions, proceeds or dividends or distributions in respect thereof, or replacements of any thereof) acquired, or of any Person acquired or merged or consolidated with or into Holdings or any Restricted Subsidiary, in any transaction to which such Acquisition Indebtedness relates, (y) on the date of the Incurrence of such Indebtedness after giving effect to such Incurrence, the Consolidated Secured Leverage Ratio would equal or be less than the Consolidated Secured Leverage Ratio immediately prior to giving effect thereto or (z) such Liens rank junior to the Liens securing the Term Loan Facilities Obligations and shall be subject to the Intercreditor Agreement or an Other Intercreditor Agreement, as applicable, or (B) any Refinancing Indebtedness Incurred in respect thereof, (5) Indebtedness of any Restricted Subsidiary that is not a Loan Party (limited, in the case of this clause (k)(5), to Liens on any of the property and assets of any Restricted Subsidiary that is not a Loan Party) and (6) obligations in respect of Management Advances or Management Guarantees, in each case under the foregoing clauses (1) through (6) including Liens securing any Guarantee of any thereof;

(l)Liens existing on property or assets of a Person at, or provided for under written arrangements existing at, the time such Person becomes a Subsidiary of Holdings (or at the time Holdings or a Restricted Subsidiary acquires such property or assets, including any acquisition by means of a merger or consolidation with or into Holdings or any Restricted Subsidiary); provided, however, that such Liens and arrangements are not created in connection with, or in contemplation of, such other Person becoming such a Subsidiary (or such acquisition of such property or assets), and that such Liens are limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which such Liens arose, could secure) the obligations to which such Liens relate; provided, further, that for purposes of this clause (l), if a Person other than Holdings is the Successor Borrower with respect thereto, any Subsidiary thereof shall be deemed to become a Subsidiary of Holdings, and any property or assets of such Person or any such Subsidiary shall be deemed acquired by Holdings or a Restricted Subsidiary, as the case may be, when such Person becomes such Successor Borrower;

(m)Liens on Capital Stock, Indebtedness or other securities of an Unrestricted Subsidiary or joint venture that secure Indebtedness or other obligations of such Unrestricted Subsidiary or joint venture, respectively;

(n)any encumbrance or restriction (including, but not limited to, pursuant to put and call agreements or buy/sell arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;

(o)Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness (other than any Indebtedness described in clause (k)(1) above of this definition) secured by, or securing any refinancing, refunding, extension, renewal or replacement (in whole or in part) of any other obligation secured by, any other Permitted Liens, provided that any such new Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the obligations to which such Liens relate;

(p)Liens (1) arising by operation of law (or by agreement to the same effect) in the ordinary course of business, including Liens arising under or by reason of the Perishable Agricultural Commodities Act of 1930, as amended from time to time, (2) on property or assets under construction (and related rights) in favor of a contractor or developer or arising from progress or partial payments by a third party relating to such property or assets, (3) on receivables (including related rights), (4) on cash set aside at the time of the Incurrence of any Indebtedness or government securities purchased with such cash, in either case to the extent that such cash or government securities prefund the payment of interest on such Indebtedness and are held in an escrow account or similar arrangement to be applied for such purpose, (5) securing or arising by reason of any netting or set-off or customer deposit arrangement entered into in the ordinary course of banking or other trading activities (including in connection with purchase orders and other agreements with customers), (6) in favor of Holdings or any Subsidiary (other than Liens on property or assets of Holdings or any Subsidiary Guarantor in favor of any Subsidiary that is not a Subsidiary Guarantor), (7)

 

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arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business, (8) on inventory or other goods and proceeds securing obligations in respect of bankers’ acceptances issued or created to facilitate the purchase, shipment or storage of such inventory or other goods, (9) relating to pooled deposit or sweep accounts to permit satisfaction of overdraft, cash pooling or similar obligations incurred in the ordinary course of business, (10) attaching to commodity trading or other brokerage accounts incurred in the ordinary course of business, or (11) arising in connection with repurchase agreements permitted under Subsection 8.1 on assets that are the subject of such repurchase agreements;, (12) on equipment of Holdings or any of its Restricted Subsidiaries granted in the ordinary course of business to Holdings’ or a Restricted Subsidiary’s customers or (13) (x) on accounts receivable or notes receivable (including any ancillary rights pertaining thereto) purported to be sold in connection with any factoring agreement or similar arrangements to secure obligations owed under such factoring agreement or similar arrangements and (y) any bank accounts used by Holdings or any Restricted Subsidiary in connection with any factoring agreement or any similar arrangements;

(q)other Liens securing Indebtedness or other obligations that in the aggregate at any time outstanding do not exceed an amount equal to the greater of $400.0500.0 million and 7.055.0% of Consolidated Total AssetsLTM EBITDA at the time of Incurrence of such Indebtedness or other obligations; and

(r)Liens securing Indebtedness (including Liens securing any Obligations in respect thereof) or other obligations of, or in favor of, any Special Purpose Entity, or in connection with a Special Purpose Financing or otherwise, Incurred pursuant to clause (b)(ix) of Section 8.1; and

(s)Liens created or arising under the general terms and conditions (algemene bankvoorwaarden) of any member of the Dutch Bankers’ Association (Nederlandse Vereniging van Banken), (in particular under any Liens arising under clause 24 or clause 25 thereof as amended or substituted from time to time) or any similar term applied by a financial institution in the Netherlands pursuant to its general terms and conditions.

For purposes of determining compliance with this definition, (wt) a Lien need not be incurred solely by reference to one category of Permitted Liens described in this definition but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category), (xu) the principal amount of Indebtedness secured by a Lien outstanding under any category of Permitted Liens shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (v) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, Holdings shall, in its sole discretion, classify or reclassify such Lien (or any portion thereof) in any manner that complies with this definition, (yw) any Lien securing Indebtedness that was permitted to secure such Indebtedness at the time of the Incurrence of such Indebtedness shall also be permitted to secure any increase in the amount of such Indebtedness in connection with the accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness and the payment of dividends on Capital Stock constituting Indebtedness in the form of additional shares of the same class of Capital Stock, (x) in the event that a portion of Indebtedness secured by a Lien could be classified as secured in part pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount (giving effect to the Incurrence of such portion of such Indebtedness), Holdings, in its sole discretion, may classify such portion of such Indebtedness (and any Obligations in respect thereof) as having been secured pursuant to clause (k)(1) above in respect of Indebtedness Incurred pursuant to Subsection 8.1(b)(i)(II) and clause (ii) of the definition of Maximum Incremental Facilities Amount and the remainder of the Indebtedness as having been secured pursuant to one or more of the other clauses of this definition and (zy) if any Liens securing Indebtedness are Incurred to refinance Liens securing Indebtedness initially Incurred (or, to refinance Liens Incurred to refinance Liens initially Incurred) in reliance on a basket measured by reference to a percentage of Consolidated Total AssetsLTM EBITDA or by reference to a dollar amount at the time of incurrence, and such refinancing (or any subsequent refinancing) would cause the percentage of Consolidated Total AssetsLTM EBITDA or dollar amount restriction to be exceeded if calculated based on the Consolidated Total AssetsLTM EBITDA or dollar amount on the date of such refinancing, such percentage of Consolidated Total AssetsLTM EBITDA or dollar amount restriction shall not be deemed to be exceeded (and such refinancing Lien shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness secured by such Liens does not exceed an amount equal to the principal amount of such Indebtedness secured by such Liens does not exceed the principal amount of such Indebtedness secured by such Liens being

 

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refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurredincurred or payable in connection with such refinancing.;

Permitted Payment”:  as defined in Subsection 8.2(b).

Person”:  an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.

Plan”:  at a particular time, any employee benefit plan which is covered by ERISA and in respect of which Holdings or a Commonly Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.

Platform”:  Intralinks, SyndTrak Online or any other similar electronic distribution system.

Preferred Stock”:  as applied to the Capital Stock of any corporation or company, Capital Stock of any class or classes (however designated) that by its terms is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such corporation or company, over Capital Stock of any other class of such corporation or company.

Prepayment Date”:  as defined in Subsection 4.4(h).

Pricing Grid”: with respect to the Term B-36 Loans:

Consolidated Total Leverage Ratio

Applicable Margin for Eurodollar Term B-36 Loans

Applicable Margin for ABR Term B-36 Loans

Greater than 4.002.50 to 1.00

2.502.00%

1.501.00%

Less than or equal to 4.002.50 to 1.00

2.251.75%

1.250.75%

and with respect to the Term B-4 Loans:

Consolidated Total Leverage Ratio

Applicable Margin for Eurodollar Term B-4 Loans

Applicable Margin for ABR Term B-4 Loans

Greater than 4.00 to 1.00

2.75%

1.75%

Less than or equal to 4.00 to 1.00

2.50%

1.50%

 

Projections”:  those financial projections included in the confidential information memoranda and related material prepared in connection with the syndication of the Facility and provided to the Lenders on or about June 2015.

PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender”: as defined in Subsection 11.2(e).

Purchase”:  as defined in clause (4) of the definition of “Consolidated Coverage Ratio.”

Purchase Money Obligations”:  any Indebtedness Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets, and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.

Qualifying Lender”:  as defined in Subsection 4.4(l)(iv)(3).

 

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Rating Agency”:  Moody’s or S&P or, if Moody’s or S&P or both shall not make a rating on the Term Loans publicly available, a nationally recognized statistical rating agency or agenciesFitch or if no rating of S&P, Moody’s or Fitch is publically available, as the case may be, the equivalent of such rating selected by Holdings which shall be substituted for Moody’s or S&P or both, as the case may beby any other nationally recognized statistical ratings organization.

Receivable”:  a right to receive payment pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay, as determined in accordance with GAAP.

Recovery Event”:  any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any asset of Holdings or any Restricted Subsidiary constituting Collateral giving rise to Net Available Cash to Holdings or such Restricted Subsidiary, as the case may be, in excess of $25.0 million, to the extent that such settlement or payment does not constitute reimbursement or compensation for amounts previously paid by Holdings or any Restricted Subsidiary in respect of such casualty or condemnation.

refinance”:  refinance, refund, replace, renew, repay, modify, restate, defer, substitute, supplement, reissue, resell or extend (including pursuant to any defeasance or discharge mechanism); and the terms “refinances,” “refinanced” and “refinancing” as used for any purpose in this Agreement shall have a correlative meaning.

Refinancing Agreement”:  as defined in Subsection 8.3(c).

Refinancing Indebtedness”:  Indebtedness that is Incurred to refinance Indebtedness (or unutilized commitments in respect of Indebtedness) Incurred pursuant to this Agreement and the Loan Documents, the Senior Notes and any Indebtedness (or unutilized commitment in respect of Indebtedness) existing on the Closing Date and set forth on Schedule 8.1 or Incurred (or established) in compliance with this Agreement (including Indebtedness of Holdings that refinances Indebtedness of any Restricted Subsidiary (to the extent permitted in this Agreement) and Indebtedness of any Restricted Subsidiary that refinances Indebtedness of another Restricted Subsidiary) including Indebtedness that refinances Refinancing Indebtedness, and Indebtedness Incurred pursuant to a commitment that refinances any Indebtedness or unutilized commitment; provided that (1) if the Indebtedness being refinanced is Subordinated Obligations or Guarantor Subordinated Obligations, the Refinancing Indebtedness (x) has a final Stated Maturity at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the final Stated Maturity of the Indebtedness being refinanced (or, if shorter, the Term B-56 Loan Maturity Date), (y) has a weighted average life to maturity at the time such Refinancing Indebtedness is Incurred that is equal to or longer than the remaining weighted average life to maturity of the Indebtedness being refinanced (or, if shorter, the remaining weighted average life to maturity of the Term B-56 Loans) and (z) if an Event of Default under Subsection 9.1(a) or (f) is continuing, is subordinated in right of payment to the Term Loan Facilities Obligations to the same extent as the Indebtedness being refinanced, (2) such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of (x) the aggregate principal amount then outstanding of the Indebtedness being refinanced, plus (y) an amount equal to any unutilized commitment relating to the Indebtedness being refinanced or otherwise then outstanding under the financing arrangement being refinanced to the extent the unutilized commitment being refinanced could be drawn in compliance with Subsection 8.1 immediately prior to such refinancing, plus (z) fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such Refinancing Indebtedness, (3) Refinancing Indebtedness shall not include (x) Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of Holdings or another Loan Party that could not have been initially Incurred by such Restricted Subsidiary pursuant to Subsection 8.1 or (y) Indebtedness of Holdings or a Restricted Subsidiary that refinances Indebtedness of an Unrestricted Subsidiary, and (4) if the Indebtedness being refinanced constitutes Additional Obligations, Rollover Indebtedness, Permitted Debt Exchange Notes or Term Loan Facilities Obligations incurred pursuant to Subsection 8.1(b)(i)(II)(a) (or Refinancing Indebtedness in respect of the foregoing Indebtedness), (w) the Refinancing Indebtedness complies with the requirements of the definition of “Additional Obligations” (other than clause (ii) thereof), (x) if the Indebtedness being refinanced is unsecured and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured and (y) if the Indebtedness being refinanced is secured by a Lien ranking junior to the Liens securing the Term Loan Facilities Obligations and an Event of Default under Subsection 9.1(a) or (f) is continuing, the Refinancing Indebtedness is unsecured or secured by a Lien ranking junior to the Liens securing the Term Loan Facilities Obligations.

 

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Refunding Capital Stock”:  as defined in Subsection 8.2(b)(i).

Register”:  as defined in Subsection 11.6(b)(iv).

Regulation D”:  Regulation D of the Board as in effect from time to time.

Regulation S‑X”:  Regulation S‑X promulgated by the SEC, as in effect on the Closing Date.

Regulation T”:  Regulation T of the Board as in effect from time to time.

Regulation U”:  Regulation U of the Board as in effect from time to time.

Regulation X”:  Regulation X of the Board as in effect from time to time.

Reinvestment Period”:  as defined in Subsection 8.4(b)(i).

Related Business”:  those businesses in which Holdings or any of its Subsidiaries is engaged on the Closing Date, or that are similar, related, complementary, incidental or ancillary thereto or extensions, developments or expansions thereof.

Related Parties”:  with respect to any Person, such Person’s affiliates and the partners, officers, directors, trustees, employees,  shareholders, members, attorneys and other advisors, agents and controlling persons of such person and of such person’s affiliates and “Related Party” shall mean any of them.

Related Taxes”:  (x) any taxes, charges or assessments, including but not limited to sales, use, transfer, rental, ad valorem, value added, stamp, property, consumption, franchise, license, capital, net worth, gross receipts, excise, occupancy, intangibles or similar taxes, charges or assessments (other than federal, state or local taxes measured by income and federal, state or local withholding imposed by any government or other taxing authority on payments made by any Parent Entity other than to another Parent Entity), required to be paid by any Parent Entity by virtue of its being incorporated or having Capital Stock outstanding (but not by virtue of owning stock or other equity interests of any corporation or other entity other than Holdings, any of its Subsidiaries or, any Parent Entity), or being a holding company parent of Holdings, any of its Subsidiaries or, any Parent Entity or receiving dividends from or other distributions in respect of the Capital Stock of Holdings, any of its Subsidiaries, any Parent Entity, or having guaranteed any obligations of Holdings or any Subsidiary thereof, or having made any payment in respect of any of the items for which Holdings or any of its Subsidiaries is permitted to make payments to any Parent Entity pursuant to Subsection 8.2, or acquiring, developing, maintaining, owning, prosecuting, protecting or defending its intellectual property and associated rights (including but not limited to receiving or paying royalties for the use thereof), or assertions of infringement, misappropriation, dilution or other violation of third-party intellectual property or associated rights, to the extent relating to the business or businesses of Holdings or any Subsidiary thereof, (y) any other federal, state, foreign, provincial or local taxes measured by income for which any Parent Entity is liable up to an amount not to exceed, with respect to federal taxes, the amount of any such taxes that Holdings and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated basis as if Holdings had filed a consolidated return on behalf of an affiliated group (as defined in Section 1504 of the Code) of which it were the common parent, or with respect to state and local taxes, the amount of any such taxes that Holdings and its Subsidiaries would have been required to pay on a separate company basis, or on a consolidated, combined, unitary or affiliated basis as if Holdings had filed a consolidated, combined, unitary or affiliated return on behalf of an affiliated group (as defined in the applicable state, foreign, provincial or local tax laws for filing such return) consisting only of Holdings and its Subsidiaries or (z) any other foreign taxes measured by income for which any Parent Entity is liable.  Taxes include all interest, penalties and additions relating thereto.

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

 

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Reportable Event”:  any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the 30 day notice period is waived under Section 21, 22, 23, 24, 25, 27 or 28 of PBGC Regulation Section 4043 or any successor regulation thereto.

Repricing Transaction”:  the prepayment, refinancing, substitution or replacement of all or a portion of the Term B-56 Loans (including, without limitation, as may be effected through any amendment, waiver or modification to this Agreement relating to the interest rate for, or weighted average yield of, the Term B-56 Loans), (a) if the primary purpose of such prepayment, refinancing, substitution, replacement, amendment, waiver or modification is (as reasonably determined by Holdings in good faith) to refinance such Term B-56 Loans at a lower “effective yield” (taking into account, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing, but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then LIBOR Rate or other reference rate), (b) if the prepayment, refinancing, substitution, replacement, amendment, waiver or modification is effectuated by the incurrence by Holdings or any Subsidiary of new Indebtedness, such new Indebtedness is Pari Passu Indebtedness in the form of bank financing, and (c) if such prepayment, refinancing, substitution, replacement, amendment, waiver or modification results in such bank financing having an “effective yield” (as reasonably determined by the Administrative Agent, in consultation with Holdings, consistent with generally accepted financial practices, after giving effect to, among other factors, margin, upfront or similar fees or original issue discount shared with all providers of such financing (calculated based on assumed four-year average life and without present value discount), but excluding the effect of any arrangement, commitment, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all providers of such financing, and without taking into account any fluctuations in the LIBOR Rate, but including any LIBOR floor or similar floor that is higher than the then applicable LIBOR Rate or other reference rate) that is less than the “effective yield” (as reasonably determined by the Administrative Agent, in consultation with Holdings, on the same basis) of the Term B-56 Loans prior to being so prepaid, refinanced, substituted or replaced or subject to such amendment, waiver or modification to this Agreement.

Required Lenders”:  Lenders the Total Credit Percentages of which aggregate greater than 50.0% of all Lenders; provided that the Commitments (or Individual Lender Exposures) held or deemed held by Defaulting Lenders shall be excluded for purposes of making a determination of Required Lenders.

Requirement of Law”:  as to any Person, the Organizational Documents of such Person, and any law, statute, ordinance, code, decree, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its material property or to which such Person or any of its material property is subject, including laws, ordinances and regulations pertaining to zoning, occupancy and subdivision of real properties and including GDPR; provided that the foregoing shall not apply to any non-binding recommendation of any Governmental Authority.

“Rescindable Amount”: as defined in Section 4.8(b)(ii).

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Reserved Indebtedness Amount”:  as defined in Subsection 1.2(k).

Responsible Officer”:  as to any Person, any of the following officers of such Person: (a) the chief executive officer or the president of such Person and, with respect to financial matters, the chief financial officer, the treasurer or the controller of such Person, (b) any vice president of such Person or, with respect to financial matters, any assistant treasurer or assistant controller of such Person, in each case who has been designated in writing to the Administrative Agent or the Collateral Agent as a Responsible Officer by such chief executive officer or president of such Person or, with respect to financial matters, by such chief financial officer of such Person, (c) solely for purposes of notices given to Section 2, Responsible Officer shall include any other officer of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative Agent and (d) with respect to Subsection 7.7 and ERISA matters and without limiting the foregoing,

 

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the general counsel (or substantial equivalent) of such Person; and as to any Person incorporated in the Netherlands, any board member authorized to represent such Person.

Restricted Payment”:  as defined in Subsection 8.2(a).

Restricted Payment Transaction”:  any Restricted Payment permitted pursuant to Subsection 8.2, any Permitted Payment, any Permitted Investment, or any transaction specifically excluded from the definition of the term “Restricted Payment” (including pursuant to the exception contained in clause (i) of such definition and the parenthetical exclusions contained in clauses (ii) and (iii) of such definition).

Restricted Subsidiary”:  any Subsidiary of Holdings other than an Unrestricted Subsidiary.

Revaluation Date”: with respect to any Loan, each of the following: (i) each date of a Borrowing of a EURIBOR Loan denominated in Euro, (ii) each date of a continuation of a EURIBOR Loan denominated in Euro pursuant to Subsection 4.2, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require.

Rollover Indebtedness”:  Indebtedness of Holdings or a Guarantor issued to any Lender in lieu of such Lender’s pro rata portion of any repayment of Term Loans made pursuant to Subsection 4.4(a) or (e); so long as (other than in connection with a refinancing in full of the Facilities) such Indebtedness would not have a weighted average life to maturity earlier than the remaining weighted average life to maturity of the Term Loans being repaid.

S&P”:  Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc., and its successors.

Sale”:  as defined in clause (3) of the definition of “Consolidated Coverage Ratio.”

Scheduled Unavailability Date” as defined in Section 4.7.

SEC”:  the United States Securities and Exchange Commission.

Secured Obligations”: the collective reference to (i) the Term Loan Facilities Obligations and (ii) all obligations and liabilities, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings and the other Loan Parties under any Hedging Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Hedging Provider (as defined in the Guarantee and Collateral Agreement), any Bank Products Agreement (as defined in the Guarantee and Collateral Agreement) entered into with any Bank Products Provider (as defined in the Guarantee and Collateral Agreement) or any Management Guarantee entered into with any Management Credit Provider or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, amounts payable in connection with any such Bank Products Agreement or a termination of any transaction entered into pursuant to any such Hedging Agreement, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees, expenses and disbursements of counsel to the Administrative Agent or any other Secured Party that are required to be paid by any Loan Party pursuant to the terms of the Credit Agreement or any other Loan Document); provided that the Secured Obligations shall not include any Excluded Swap Obligations (as defined in the Guarantee and Collateral Agreement).

Secured Parties”:  the “Secured Parties” as defined in the Guarantee and Collateral Agreement.

Securities Act”:  the Securities Act of 1933, as amended from time to time.

Security Documents”:  the collective reference to each Mortgage related to any Mortgaged Fee Property, the Guarantee and Collateral Agreement, each Dutch Security Document and all other security documents hereafter delivered to the Collateral Agent granting or perfecting a Lien on any asset or assets of any Person to secure the obligations and liabilities of the Loan Parties hereunder and/or under any of the other Loan Documents or to secure

 

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any guarantee of any such obligations and liabilities, including any security documents executed and delivered or caused to be delivered to the Collateral Agent pursuant to Subsection 7.9(a), 7.9(b), 7.9(c) or 7.9(d), in each case, as amended, supplemented, waived or otherwise modified from time to time.

Senior ABL Agreement” means the ABL Credit Agreement, dated as of the Closing Date, among Holdings, the U.S. Borrower, Univar Canada Ltd., a company formed under the laws of the Province of British Alberta, the Subsidiaries of Holdings from time to time party thereto, the lenders party thereto from time to time, and Bank of America, N.A., as U.S. administrative agent and collateral agent and Bank of America, N.A. (acting through its Canadian branch), as Canadian administrative agent, as such agreement has been amended and restated through the Closing Date and as such agreement may be further amended, supplemented, waived or otherwise modified from time to time or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original administrative agent and lenders or other agents and lenders or otherwise), except to the extent such agreement, instrument or other document expressly provides that it is not intended to be and is not a Senior ABL Agreement.  Any reference to the Senior ABL Agreement hereunder shall be deemed a reference to each Senior ABL Agreement then in existence.

Senior ABL Facility” means the collective reference to the Senior ABL Agreement, any Credit Documents (as defined therein), the ABL Intercreditor Agreement, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages, letter of credit applications and other guarantees, pledge agreements, security agreements and collateral documents, and other instruments and documents, executed and delivered pursuant to or in connection with any of the foregoing, in each case as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part, whether with the original agent and lenders or other agents and lenders or otherwise, and whether provided under the original Senior ABL Agreement or one or more other credit agreements, indentures or financing agreements or otherwise), except to the extent such agreement, instrument or document expressly provides that it is not intended to be and is not a Senior ABL Facility.  Without limiting the generality of the foregoing, the term “Senior ABL Facility” shall include any agreement (i) changing the maturity of any Indebtedness Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of Holdings as additional borrowers or guarantors thereunder, (iii) increasing the amount of Indebtedness Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.

Senior ABL Obligations” means all Obligations in respect of the Senior ABL Facility.

Senior Notes”:  5.125% Senior Notes due 2027 of the Borrower issued on the Amendment No. 5 Effective Date, as the same may be exchanged for substantially similar senior notes that have been registered under the Securities Act, and as the same or such substantially similar notes may be amended, supplemented, waived or otherwise modified from time to time.

Senior Notes Documents”:  the Senior Notes Indenture and all other instruments, agreements and other documents evidencing or governing the Senior Notes or providing for any guarantee, obligation, security or other right in respect thereof.

Senior Notes Indenture”:  the Indenture dated as of the Amendment No. 5 Effective Date, under which the Senior Notes are issued, as the same may be amended, supplemented, waived or otherwise modified from time to time.

Set”:  the collective reference to Eurodollar Loans or EURIBOR Loans of a single Tranche, the then current Interest Periods with respect to all of which begin on the same date and end on the same later date (whether or not such Eurodollar Loans or EURIBOR Loans shall originally have been made on the same day).

Settlement Service”:  as defined in Subsection 11.6(b).

Single Employer Plan”:  any Plan which is covered by Title IV or Section 302 of ERISA or Section 412 of the Code, but which is not a Multiemployer Plan.

 

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“SOFR Early Opt-in” means the Administrative Agent and the Borrower Representative have elected to replace LIBOR pursuant to (1) an Early Opt-in Election and (2) Section 4.7(II)(i) and paragraph (1) of the definition of “Benchmark Replacement”.

Solicited Discounted Prepayment Amount”:  as defined in Subsection 4.4(l)(iv)(1).

Solicited Discounted Prepayment Notice”:  an irrevocable written notice of Borrower Solicitation of Discounted Prepayment Offers made pursuant to Subsection 4.4(l)(iv) substantially in the form of Exhibit Q.

Solicited Discounted Prepayment Offer”:  the irrevocable written offer by each Lender, substantially in the form of Exhibit R, submitted following the Administrative Agent’s receipt of a Solicited Discounted Prepayment Notice.

Solicited Discounted Prepayment Response Date”:  as defined in Subsection 4.4(l)(iv)(1).

Solicited Discount Proration”:  as defined in Subsection 4.4(l)(iv)(3).

Solvent” and “Solvency”:  with respect to Holdings and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date means (i) the Fair Value and Present Fair Salable Value of the assets of Holdings and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) Holdings and its Subsidiaries taken as a whole do not have Unreasonably Small Capital; and (iii) Holdings and its Subsidiaries taken as a whole will be able to pay their Stated Liabilities and Identified Contingent Liabilities as they mature (all capitalized terms used in this definition (other than “Borrower” and “Subsidiary” which have the meanings set forth in this Agreement) shall have the meaning assigned to such terms in the form of solvency certificate attached hereto as Exhibit H).

Special Purpose Entity”:  (x) any Special Purpose Subsidiary or (y) any other Person that is engaged in the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time), other accounts and/or other receivables, and/or related assets and/or (ii) financing or refinancing in respect of Capital Stock of any Special Purpose Subsidiary.

Special Purpose Financing”:  any financing or refinancing of assets consisting of or including Receivables of Holdings or any Restricted Subsidiary that have been transferred to a Special Purpose Entity or made subject to a Lien in a Financing Disposition (including any financing or refinancing in respect of Capital Stock of a Special Purpose Subsidiary held by another Special Purpose Subsidiary).

Special Purpose Financing Expense”:  for any period, (a) the aggregate interest expense for such period on any Indebtedness of any Special Purpose Subsidiary that is a Restricted Subsidiary, which Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), and (b) Special Purpose Financing Fees.

Special Purpose Financing Fees”:  distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Restricted Subsidiary in connection with, any Special Purpose Financing.

Special Purpose Financing Undertakings”:  representations, warranties, covenants, indemnities, guarantees of performance and (subject to clause (y) of the proviso below) other agreements and undertakings entered into or provided by Holdings or any of its Restricted Subsidiaries that Holdings determines in good faith (which determination shall be conclusive) are customary or otherwise necessary or advisable in connection with a Special Purpose Financing or a Financing Disposition; provided that (x) it is understood that Special Purpose Financing Undertakings may consist of or include (i) reimbursement and other obligations in respect of notes, letters of credit, surety bonds and similar instruments provided for credit enhancement purposes, (ii) Hedging Obligations or other obligations relating to Interest Rate Agreements, Currency Agreements or Commodities Agreements entered into by Holdings or any Restricted Subsidiary, in respect of any Special Purpose Financing or Financing Disposition, or (iii)

 

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any Guarantee in respect of customary recourse obligations (as determined in good faith by Holdings, which determination shall be conclusive) in connection with any Special Purpose Financing or Financing Disposition, including in respect of Liabilities in the event of any involuntary case commenced with the collusion of any Special Purpose Subsidiary or any Affiliate thereof, or any voluntary case commenced by any Special Purpose Subsidiary, under any applicable bankruptcy law, and (y) subject to the preceding clause (x), any such other agreements and undertakings shall not include any Guarantee of Indebtedness of a Special Purpose Subsidiary by Holdings or a Restricted Subsidiary that is not a Special Purpose Subsidiary.

Special Purpose Subsidiary”:  any Subsidiary of Holdings that (a) is engaged solely in (x) the business of (i) acquiring, selling, collecting, financing or refinancing Receivables, accounts (as defined in the Uniform Commercial Code or any analogous law, as in effect in any applicable jurisdiction from time to time) and other accounts and receivables (including any thereof constituting or evidenced by chattel paper, instruments or general intangibles), all proceeds thereof and all rights (contractual and other), collateral and other assets relating thereto, and/or (ii) owning or holding Capital Stock of any Special Purpose Subsidiary and/or engaging in any financing or refinancing in respect thereof, and (y) any business or activities incidental or related to such business, and (b) is designated as a “Special Purpose Subsidiary” by Holdings.

Specified Discount”:  as defined in Subsection 4.4(l)(ii)(1).

Specified Discount Prepayment Amount”:  as defined in Subsection 4.4(l)(ii)(1).

Specified Discount Prepayment Notice”:  an irrevocable written notice of Borrower Offer of Specified Discount Prepayment made pursuant to Subsection 4.4(l)(ii) substantially in the form of Exhibit S.

Specified Discount Prepayment Response”:  the written response by each Lender, substantially in the form of Exhibit T, to a Specified Discount Prepayment Notice.

Specified Discount Prepayment Response Date”:  as defined in Subsection 4.4(l)(ii)(1).

Specified Discount Proration”:  as defined in Subsection 4.4(l)(ii)(3).

Specified Excluded Real Property”: the real property described on Schedule C to Amendment No. 5.

Specified Existing Tranche”:  as defined in Subsection 2.10(a)(ii).

Specified Refinancing Amendment”:  an amendment to this Agreement effecting the incurrence of Specified Refinancing Term Loan Facilities in accordance with Subsection 2.11.

Specified Refinancing Indebtedness”:  Indebtedness incurred by any Borrower pursuant to and in accordance with Subsection 2.11.

Specified Refinancing Lenders”:  as defined in Subsection 2.11(b).

Specified Refinancing Term Loan Facilities”:  as defined in Subsection 2.11(a).

Specified Refinancing Term Loans”:  as defined in Subsection 2.11(a).

Specified Refinancing Tranche”:  Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loan added to such Tranche pursuant to Subsection 2.8.

Sponsors”:  collectively, CD&R and CVC.

 

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Spot Rate”: for a currency means the rate determined by the Administrative Agent to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent may obtain such spot rate from another financial institution designated by the Administrative Agent if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency.

Stated Maturity”:  with respect to any Indebtedness, the date specified in such Indebtedness as the fixed date on which the payment of principal of such Indebtedness is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase or repayment of such Indebtedness at the option of the holder thereof upon the happening of any contingency).

Statutory Reserves”:  for any day as applied to a Eurodollar Loan, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal Reserve System in New York City with deposits exceeding $1,000,000,000 against “Eurocurrency liabilities” (as such term is used in Regulation D).  Eurodollar Loans shall be deemed to constitute Eurocurrency liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D.

Submitted Amount”:  as defined in Subsection 4.4(l)(iii)(1).

Submitted Discount”:  as defined in Subsection 4.4(l)(iii)(1).

Subordinated Obligations”:  any Indebtedness of Holdings (whether outstanding on the Closing Date or thereafter Incurred) that is expressly subordinated in right of payment to the Term Loan Facilities Obligations pursuant to a written agreement.

Subsection 2.10 Additional Amendment”:  as defined in Subsection 2.10(c).

Subsidiary”:  as to any Person, a corporation, association, partnership, limited liability company or other entity (a) of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the Board of Directors or other managers of such corporation, partnership, limited liability company or other entity are at the time owned by such Person, or (b) the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person and, in the case of this clause (b), which is treated as a consolidated subsidiary for accounting purposes.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of Holdings.  

Subsidiary Borrower”:  each Restricted Subsidiary that is designated by the Borrower Representative as a borrower in respect of any Incremental Term Facilityincremental term facility consisting of an additional term loan facility and which (x) is acceptable to the lenders providing such Incremental Term Facilityincremental term facility and (y) if organized in a jurisdiction other than the United States, shall be organized in a jurisdiction that is reasonably acceptable to the Administrative Agent, which Restricted Subsidiary shall become a “Borrower” hereunder pursuant to a Subsidiary Borrower Joinder Agreement (which Subsidiary Borrower Joinder Agreement shall be accompanied by all documentation and other information about such Subsidiary Borrower as shall be mutually agreed to be required by U.S. regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act), together with their respective successors and assigns, unless and until such time as the respective Subsidiary Borrower is released from all of its obligations hereunder in accordance with terms and provisions hereof.  Upon receipt of a Subsidiary Borrower Joinder Agreement, the Administrative Agent shall promptly transmit each such notice to each of the Lenders; provided that any failure to do so by the Administrative Agent shall not in any way affect the status of any such Subsidiary as a Subsidiary Borrower hereunder.

 

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Subsidiary Borrower Joinder Agreement”:  a joinder in form and substance reasonably satisfactory to the Borrower Representative, the Administrative Agent and the applicable Incremental Lenders, to be executed by each Subsidiary Borrower designated as such after the Amendment No. 5 Effective Date.

Subsidiary Guarantor”:  (x) each Domestic Subsidiary (other than any Excluded Subsidiary) of Holdings which executes and delivers a Loan Party Guaranty pursuant to Subsection 7.9 or otherwise, in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Domestic Subsidiary of Holdings in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Loan Party Guaranty in accordance with the terms and provisions thereof and (y) each other Subsidiary of Holdings which Holdings causes to execute and deliver a Loan Party Guaranty pursuant to the last sentence of Subsection 7.9(b), in each case, unless and until such time as the respective Subsidiary Guarantor (a) ceases to constitute a Subsidiary of Holdings in accordance with the terms and provisions hereof, (b) is designated an Unrestricted Subsidiary pursuant to the terms of this Agreement or (c) is released from all of its obligations under the Loan Party Guaranty in accordance with the terms and provisions thereof.

Successor Borrower”:  as defined in Subsection 8.7(b)(i).

Successor Holdings”:  as defined in Subsection 8.7(a)(i).

Supplemental Term Loan Commitments”:  as defined in Subsection 2.8(a).

Supplemental Term Loans”:  Term Loans made in respect of Supplemental Term Loan Commitments.

TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.

TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.

Tax Sharing Agreement”: any tax sharing agreement among Holdings, a Parent Entity and any of their respective Affiliates, as the same may be amended, supplemented, waived or otherwise modified from time to time.

Taxes”:  any and all present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority.

Temasek Investors”:  collectively, (i) Temasek Holdings (Private) Limited, and any successor in interest thereto, (ii) Dahlia Investments Pte. Ltd., and any successor in interest thereto, and (iii) any Affiliate of any Temasek Investor identified in clauses (i) and (ii) of this definition.

Temporary Cash Investments”:  any of the following:  (i) any investment in (x) direct obligations of the United States of America, Canada, a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by Holdings or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any thereof, or obligations Guaranteed by the United States of America, Canada or a member state of the European Union or any country in whose currency funds are being held pending their application in the making of an investment or capital expenditure by Holdings or a Restricted Subsidiary in that country or with such funds, or any agency or instrumentality of any of the foregoing, or obligations guaranteed by any of the foregoing or (y) direct obligations of any foreign country recognized by the United States of America rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (ii) overnight bank deposits, and investments in time deposit

 

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accounts, certificates of deposit, bankers’ acceptances and money market deposits (or, with respect to foreign banks, similar instruments) maturing not more than one year after the date of acquisition thereof issued by (x) any bank or other institutional lender under this Agreement or any affiliate thereof or (y) a bank or trust company that is organized under the laws of the United States of America, any state thereof or any foreign country recognized by the United States of America having capital and surplus aggregating in excess of $250,000,000 (or the foreign currency equivalent thereof) and whose long term debt is rated at least “A” by S&P or “A-1” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization) at the time such Investment is made, (iii) repurchase obligations with a term of not more than 30 days for underlying securities or instruments of the types described in clause (i) or (ii) above entered into with a bank meeting the qualifications described in clause (ii) above, (iv) Investments in commercial paper, maturing not more than 270 days after the date of acquisition, issued by a Person (other than that of Holdings or any of its Subsidiaries), with a rating at the time as of which any Investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (v) Investments in securities maturing not more than one year after the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or “A” by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vi) Indebtedness or Preferred Stock (other than of Holdings or any of its Subsidiaries) having a rating of “A” or higher by S&P or “A2” or higher by Moody’s (or, in either case, the equivalent of such rating by such organization or, if no rating of S&P or Moody’s then exists, the equivalent of such rating by any nationally recognized rating organization), (vii) investment funds investing 95.0% of their assets in securities of the type described in clauses (i) through (vi) above (which funds may also hold reasonable amounts of cash pending investment and/or distribution), (viii) any money market deposit accounts issued or offered by a domestic commercial bank or a commercial bank organized and located in a country recognized by the United States of America, in each case, having capital and surplus in excess of $250,000,000 (or the foreign currency equivalent thereof), or investments in money market funds subject to the risk limiting conditions of Rule 2a-7 (or any successor rule) of the SEC under the Investment Company Act of 1940, as amended and (ix) similar investments approved by the Board of Directors in the ordinary course of business.

Term B Loans”: collectively, the Term B-3 Loans, Term B-45 Loans and Term B-56 Loans.

Term B-2 Loans”:  all “Term B-2 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 2 Effective Date.

Term B-3 Loans”: all “Term B-3 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 46 Effective Date.

Term B-3 and B-4 Loan Maturity Date”:  July 1, 2024.

Term B-4 Loans”: all “Term B-4 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 5 Effective Date.

Term B-4 Commitment”:  as to any Lender, its obligation to make Term B-4 Loans to the U.S. Borrower pursuant to Subsection 2.1(b) in an aggregate amount not to exceed the amount set forth opposite such Lender’s name on Schedule B hereto under the heading “Term B-4 Commitment”; collectively, as to all the Lenders with a Term B-4 Commitment, the “Term B-4 Commitments.”  The original aggregate amount of the Term B-4 Commitments on5 Loans”: all “Term B-5 Loans” (as defined in the Original Credit Agreement) outstanding under this Agreement immediately prior to the Amendment No. 46 Effective Date is $300,000,000.

“Term B-5 Loan Maturity Date”: July 1, 2026

Term B-56 Commitment”:  as to any Lender, its obligation to make Term B-56 Loans to the U.S. Borrower and the Netherlands Borrower pursuant to Subsection 2.1(ba) in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Schedule A hereto under the heading “Term B-56 Commitment”;

 

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collectively, as to all the Lenders with a Term B-56 Commitment, the “Term B-56 Commitments.”  The original aggregate principal amount of the Term B-56 Commitments on the Amendment No. 56 Effective Date is $400,000,0001,000,000,000.

Term B-5 Loan Maturity Date”:  July 1, 2026.

Term B-56 Loans”: as defined in Subsection 2.1(ba).

“Term B-6 Loan Maturity Date”: June 3, 2028

Term Loan Commitment”:  as to any Lender, the aggregate of its Term B-5 Commitments, Term B-46 Commitments, Incremental Term Loan Commitment and Supplemental Term Loan Commitments; collectively as to all Lenders the “Term Loan Commitments.”

Term Loan Facilities Obligations”:  obligations of the Borrowers and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest and fees, if any (including interest and fees accruing during (or that would accrue but for) the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Term Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of Holdings and the other Loan Parties under this Agreement and the other Loan Documents.

Term Loans”:  the Term B-5 Loans, Term B-46 Loans, Term B-35 Loans, Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans, as the context shall require.

“Term SOFR” means, for the applicable corresponding tenor (or if any Available Tenor of a Benchmark does not correspond to an Available Tenor for the applicable Benchmark Replacement, the closest corresponding Available Tenor and if such Available Tenor corresponds equally to two Available Tenors of the applicable Benchmark Replacement, the corresponding tenor of the shorter duration shall be applied), the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

Total Credit Percentage”:  as to any Lender at any time, the percentage which (a) the Dollar Equivalent of such Lender’s then outstanding Term Loans (if any) and such Lender’s unused Term Loan Commitments (if any) then outstanding constitutes of (b) the Dollar Equivalent of aggregate outstanding Term Loans (if any) of all Lenders then outstanding and aggregate unused Term Loan Commitments of all Lenders (if any) then outstanding.

Total Leverage Excess Proceeds”:  as defined in Subsection 8.4(b).

Trade Payables”:  with respect to any Person, any accounts payable or any indebtedness or monetary obligation to trade creditors created, assumed or guaranteed by such Person arising in the ordinary course of business in connection with the acquisition of goods or services.

Tranche”:  refers to whether Term Loans or commitments are (1) Term B-35 Loans, (2) Term B-46 Loans or Term B-46 Loan Commitments, (3Term B-5 Loans or Term B-5 Loan Commitments, (4) Incremental Term Loans or Incremental Term Loan Commitments with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8, (54) Extended Term Loans (of the same Extension Series) or (65) Specified Refinancing Term Loan Facilities with the same terms and conditions made on the same day and any Supplemental Term Loans added to such Tranche pursuant to Subsection 2.8.

 

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Transactions”:  collectively, any or all of the following (whether taking place prior to, on or following the date hereof): (i) the entry into the Senior Notes Documents and the offering and issuance of the Senior Notes, (ii) the entry into the Term Loan Facilities on and after the Closing Date but prior to the Amendment No. 2 Effective Date and Incurrence of Indebtedness thereunder by one or more of Holdings and its Subsidiaries, (iii) the entry into the ABL Credit Facilities and the Incurrence of Indebtedness thereunder by one or more of Holdings and its Subsidiaries, (iv) the repayment of the Existing Term Loan Agreement, and (v) all other transactions relating to any of the foregoing (including payment of fees and expenses related to any of the foregoing).

Transformative Acquisition”:  means any acquisition by Holdings or any Restricted Subsidiary that is either (a) not permitted by the terms of this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by the terms of this Agreement immediately prior to the consummation of such acquisition, would not provide Holdings and its Restricted Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by Holdings acting in good faith.

Transferee”:  any Participant or Assignee.

Treasury Capital Stock”:  as defined in Subsection 8.2(b)(i).

Type”:  the type of Loan determined based on the interest option applicable thereto, with there being three Types of Loans hereunder, namely ABR Loans, Eurodollar Loans and EURIBOR Loans.

UCC”:  the Uniform Commercial Code as in effect in the State of New York from time to time.

“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

United States Person”:  any United States person within the meaning of Section 7701(a)(30) of the Code.

Unrestricted Cash”:  at any date of determination, (a) the aggregate amount of cash, Cash Equivalents and Temporary Cash Investments included in the cash accounts that would be listed on the consolidated balance sheet of Holdings prepared in accordance with GAAP as of the end of the most recent four consecutive quarters ending prior to the date of such determination for which consolidated financial statements of Holdings are available to the extent such cash is not classified as “restricted” for financial statement purposes (unless so classified solely because of any provision under the Loan Documents or any other agreement or instrument governing other Indebtedness that is subject to the ABL Intercreditor Agreement, the Intercreditor Agreement or any Other Intercreditor Agreement governing the application thereof or because they are subject to a Lien securing the Term Loan Facilities Obligations or other Indebtedness that is subject to the ABL Intercreditor Agreement, Intercreditor Agreement or any Other Intercreditor Agreement), plus (b) the proceeds from any Incurrence of Incremental Term Loans since the date of such consolidated balance sheet and on or prior to the date of determination that are (in the good faith judgment of Holdings) intended to be used for working capital purposes.

Unrestricted Subsidiary”:  (i) any Subsidiary of Holdings that at the time of determination is an Unrestricted Subsidiary, as designated by the Board of Directors in the manner provided below, and (ii) any Subsidiary of an Unrestricted Subsidiary.  The Board of Directors may designate any Subsidiary of Holdings (including any newly acquired or newly formed Subsidiary of Holdings), other than the Borrowers and any direct or indirect parent entity of the U.S. Borrower to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or owns or holds any Lien on any property of, Holdings or any other Restricted Subsidiary of Holdings that is not a Subsidiary of the Subsidiary to be so designated; provided, that (A) such designation was made at or prior to the Closing Date, or (B) the Subsidiary to be so designated has total consolidated assets of $1,000 or less, (C) if such Subsidiary has consolidated assets greater than $1,000, then such designation

 

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would be permitted under Subsection 8.2 and (D) immediately after such designation, no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be continuing.  The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided, that immediately after giving effect to such designation (1) (x) Holdings could Incur at least $1.00 of additional Indebtedness under Subsection 8.1(a) or (y) the Consolidated Coverage Ratio would be greater than it was immediately prior to giving effect to such designation or (z) such Subsidiary shall be a Special Purpose Subsidiary with no Indebtedness outstanding other than Indebtedness that can be Incurred (and upon such designation shall be deemed to be Incurred and outstanding) pursuant to Subsection 8.1(b) and (2) immediately after such designation, no Event of Default under Subsection 9.1(a) or (f) shall have occurred and be continuing.  Any such designation by the Board of Directors shall be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a copy of the resolution of Holdings’ Board of Directors giving effect to such designation and a certificate of a Responsible Officer of Holdings certifying that such designation complied with the foregoing provisions.

U.S. Borrower”:  as defined in the Preamble hereto.

U.S. Tax Compliance Certificate”:  as defined in Subsection 4.11(b)(ii)(2).

Voting Stock”:  as to any entity, all classes of Capital Stock of such entity then outstanding and normally entitled to vote in the election of directors or all interests in such entity with the ability to control the management or actions of such entity.

Wholly Owned Subsidiary”:  as to any Person, any Subsidiary of such Person of which such Person owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Capital Stock of such Subsidiary other than directors qualifying shares or shares held by nominees.

Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule., (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers, and (c) in relation to any other applicable Bail-In Legislation: (i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and (ii) any similar or analogous powers under that Bail-In Legislation.

1.2Other Definitional and Interpretive Provisions.

(a)Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in any Notes, any other Loan Document or any certificate or other document made or delivered pursuant hereto.

(b)As used herein and in any Notes and any other Loan Document, and any certificate or other document made or delivered pursuant hereto or thereto, accounting terms relating to Holdings and its Restricted Subsidiaries not defined in Subsection 1.1 and accounting terms partly defined in Subsection 1.1, to the extent not defined, shall have the respective meanings given to them under GAAP.

 

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(c)The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection, Schedule and Exhibit references are to this Agreement unless otherwise specified.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”

(d)For purposes of determining any financial ratio or making any financial calculation for any fiscal quarter (or portion thereof) ending prior to the Closing Date, the components of such financial ratio or financial calculation shall be determined on a pro forma basis to give effect to the Transactions as if they had occurred at the beginning of such four-quarter period; and each Person that is a Restricted Subsidiary upon giving effect to the Transactions shall be deemed to be a Restricted Subsidiary for purposes of the components of such financial ratio or financial calculation as of the beginning of such four-quarter period.

(e)Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (rounding up if there is no nearest number).

(f)Any references in this Agreement to “cash and/or Cash Equivalents”, “cash, Cash Equivalents and/or Temporary Cash Investments” or any similar combination of the foregoing shall be construed as not double counting cash or any other applicable amount which would otherwise be duplicated therein.

(g)The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(h)In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of determining compliance with any provision of this Agreement which requires that no Default, Event of Default or specified Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of Holdings, be deemed satisfied, so long as no Default, Event of Default or specified Event of Default, as applicable, exists on the date the definitive agreements for such Limited Condition Acquisition are entered into.  For the avoidance of doubt, if Holdings has exercised its option under the first sentence of this clause (g), and any Default or Event of Default occurs following the date the definitive agreements for the applicable Limited Condition Acquisition were entered into and prior to the consummation of such Limited Condition Acquisition, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Acquisition is permitted hereunder.

(i)In connection with any action being taken in connection with a Limited Condition Acquisition, for purposes of:

(i)determining compliance with any provision of this Agreement which requires the calculation of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio; or

(ii)testing baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated Total AssetsLTM EBITDA or Foreign Consolidated Total AssetsLTM EBITDA);

in each case, at the option of Holdings (Holdings’ election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Acquisition and the other transactions to be entered into in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof and acquisition of Consolidated EBITDA) as if they had occurred at the beginning of the most recent four consecutive fiscal quarters ending prior to the LCA Test Date for which consolidated financial statements of Holdings are available, Holdings could have taken such action on the relevant LCA Test Date in compliance with such

 

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ratio or basket, such ratio or basket shall be deemed to have been complied with.For the avoidance of doubt, if Holdings has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA or Consolidated Total AssetsLTM EBITDA or Foreign Consolidated Total AssetsLTM EBITDA of Holdings or the Person subject to such Limited Condition Acquisition, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations.  If Holdings has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to the Incurrence of Indebtedness or Liens, or the making of Restricted Payments or Permitted Investments, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of Holdings or the designation of an Unrestricted Subsidiary on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the definitive agreement for such Limited Condition Acquisition is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any Incurrence of Indebtedness and the use of proceeds thereof) have been consummated.

(j)Any reference herein or in any other Loan Document to (i) a transfer, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (collectively, a “Division”), as if it were a transfer, assignment, sale or transfer, or similar term, as applicable, to a separate Person, and (ii) a merger, consolidation, amalgamation or consolidation, or similar term, shall be deemed to apply to the division of or by a limited liability company, or an allocation of assets to a series of a limited liability company, or the unwinding of such a division or allocation, as if it were a merger, consolidation, amalgamation or consolidation or similar term, as applicable, with a separate Person.

(k)For all purposes under this Agreement, including for purposes of calculating the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, in connection with the incurrence, issuance or assumption of any revolving Indebtedness pursuant to Subsection 8.1(a) or Subsection 8.1(b) or the incurrence or creation of any Lien securing revolving Indebtedness pursuant to the definition of “Permitted Liens,” Holdings may elect, at its option, to treat all or any portion of the committed amount of any revolving Indebtedness (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) which is to be incurred (or any commitment in respect thereof) or secured by such Lien, as the case may be (any such committed amount elected until revoked as described below, the “Reserved Indebtedness Amount”), as being incurred as of such election date, and, if such Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Agreement, as applicable, is complied with (or satisfied) with respect thereto on such election date, any subsequent borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be deemed to be permitted under Subsection 8.1 or the definition of “Permitted Liens,” as applicable, whether or not the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Agreement, as applicable, at the actual time of any subsequent borrowing or reborrowing (or issuance or creation of letters of credit or bankers’ acceptances thereunder) is complied with (or satisfied) for all purposes (including as to the absence of any continuing Default or Event of Default); provided that for purposes of subsequent calculations of the Consolidated Coverage Ratio, the Consolidated Secured Leverage Ratio, the Consolidated Total Leverage Ratio or other provision of this Agreement, as applicable, the Reserved Indebtedness Amount shall be deemed to be outstanding, whether or not such amount is actually outstanding, for so long as such commitments are outstanding or until Holdings revokes an election of a Reserved Indebtedness Amount.  

1.3Borrower Representative

.  Each Borrower hereby designates the U.S. Borrower as the Borrower Representative.  The Borrower Representative will be acting as agent on each of the Borrowers’ behalf for the purposes of issuing notices of Borrowing and notices of conversion/continuation of any Loans pursuant to Section 2 and Section 4 or similar notices, giving instructions with respect to the disbursement of the proceeds of the Loans, selecting interest rate options, giving and receiving all other notices and consents hereunder or under any of the other Loan Documents and taking all other actions (including in respect of compliance with covenants) on behalf of any Borrower or the Borrowers under the Loan Documents.  The Borrower Representative hereby accepts such appointment.  Each

 

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Borrower agrees that each notice, election, representation and warranty, covenant, agreement and undertaking made on its behalf by the Borrower Representative shall be deemed for all purposes to have been made by such Borrower and shall be binding upon and enforceable against such Borrower to the same extent as if the same had been made directly by such Borrower.

1.4Foreign Subsidiary Documentation. Each guaranty and each collateral document entered into by a Foreign Subsidiary shall, in the case of such Foreign Subsidiary, be subject to the Foreign Subsidiary Documentation Principles in all respects.

1.5Dutch Terms

In this Agreement, where it relates to a Person incorporated in the Netherlands, a reference to:

(a)“the Netherlands” means the European part of the Kingdom of the Netherlands and “Dutch” means in or of the Netherlands;

(b)“organizational documents” means the articles of association (statuten), the deed of incorporation (akte van oprichting) and an up-to-date extract of registration of the Dutch trade register;

(c)a “certificate of incorporation” means a deed of incorporation (akte van oprichting);

(d)a “security interest”, “security” or “lien” includes any mortgage (hypotheekrecht), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), right of retention (recht van rententie), right to reclaim goods (recht van reclame) and any right in rem (beperkt recht) created for the purpose of granting security (goederenrechtelijke zekerheid);

(e)a “winding-up”, “administration” or “dissolution” includes declared bankrupt (failliet verklaard) or dissolved (ontbonden);

(f)a “moratorium” includes surseance van betaling or voorlopige surseance van betaling and  “moratorium is declared” includes surseance verleend or voorlopige surseance verleend;

(g)a “liquidator”, “receiver”, “administrative receiver”, “conservator”, “trustee”, “administrator”, “compulsory manager”, “custodian”, “assignee for the benefit of creditors” or similar Person includes a curator, a beoogd curator or, a bewindvoerder, an observator or a herstructureringsdeskundige;

(h)an “attachment” includes a executoriaal beslag or conservatoir beslag;

(i)“all necessary corporate or other organizational action to authorize” includes without limitation (i) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden) and (ii) obtaining an unconditional positive advice (advies) from the competent works council(s);

(j)to “commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes a Person having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); and

(k)a “proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors” includes any insolvency proceedings within the meaning of the Insolvency Regulation listed or to be listed in Annex A thereto.

 

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Section 2

Amount and Terms of Commitments

2.1Term B-56 Loans.

(a)Term B-56 Loans.  

(i)Subject to the terms and conditions hereof, each Lender holding a Term B-56 Commitment severally agrees to make, in Dollars, in a single draw on the Amendment No. 56 Effective Date, one or more term loans (each, a “Term B-56 Loan”) to the U.S. Borrower and the Netherlands Borrower in an aggregate principal amount of its Term B-56 Commitment, which Term B-56 Loan, except as hereinafter provided, shall, at the option of the Borrower Representative, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Loans; and

(ii)shall be made by each such Lender in an aggregate principal amount which does not exceed the Term B-56 Commitment of such Lender.

Once repaid, the Term B-56 Loans outstanding hereunder may not be reborrowed.  On the Amendment No. 56 Effective Date (after giving effect to the incurrence of Term B-56 Loans on such date), the Term B-56 Commitments of each Lender shall terminate.

(b)Subject to the terms and conditions hereof, all Term B-3 Loans and Term B-45 Loans outstanding immediately prior to the Amendment No. 56 Effective Date will continue to remain outstanding on the Amendment No. 56 Effective Date.

2.2Notes.

(a)The Borrowers agree that, upon the request to the Administrative Agent by any Lender made on or prior to the Closing Date or in connection with any assignment pursuant to Subsection 11.6(b), in order to evidence such Lender’s Loan, the applicable Borrower(s) shall execute and deliver to such Lender a promissory note substantially in the form of Exhibit A (as amended, supplemented, replaced or otherwise modified from time to time, a “Note”), in each case with appropriate insertions therein as to payee, date and principal amount, payable to such Lender and in a principal amount equal to the unpaid principal amount of the applicable Loans made (or acquired by assignment pursuant to Subsection 11.6(b)) by such Lender to the applicable Borrower(s).  Each Note shall be payable as provided in Subsection 2.2(b) or 2.2(c), as applicable, and provide for the payment of interest in accordance with Subsection 4.1.

(b)The (i) Term B-35 Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on DecemberMarch 31, 20172020 up to and including the Term B-3 and B-45 Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Term B-35 Loans then outstanding); provided that if the applicable installment date is not a Business Day then the applicable payment shall be made on the immediately preceding Business Day:

Date

Amount

Each March 31, June 30, September 30 and December 31 ending prior to the Term B-3 and B-4 Loan Maturity Date

0.25% of the aggregate initial principal amount of the Term B-3 Loans on the Amendment No. 2 Effective Date

Term B-3 and B-4 Loan Maturity Date

all unpaid aggregate principal amounts of any outstanding Term B-3 Loans

 

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and (ii) Term B-4 Loans of all the Lenders shall be payable in consecutive quarterly installments beginning on June 30, 2019 up to and including the Term B-3 and B-4 Loan Maturity Date (subject to reduction as provided in Subsection 4.4), on the dates and in the principal amounts, subject to adjustment as set forth below, equal to the respective amounts set forth below (together with all accrued interest thereon) opposite the applicable installment dates (or, if less, the aggregate amount of such Term B-4 Loans then outstanding); provided that if the applicable installment date is not a Business Day then the applicable payment shall be made on the immediately preceding Business Day:

 

Date

Amount

Each March 31, June 30, September 30 and December 31 ending prior to the Term B-3 and B-45 Loan Maturity Date

0.25% of the aggregate initial principal amount of the Term B-45 Loans on the Amendment No. 45 Effective Date

Term B-3 and B-45 Loan Maturity Date

all unpaid aggregate principal amounts of any outstanding Term B-45 Loans

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